AB207: Bill Text Engrossed

AB207-engrossed,8,13 (p) "Large telecommunications video service provider" means a telecommunications video service provider that, on January 1, 2007, had more than 500,000 basic local exchange access lines in this state or an affiliate of such a telecommunication video service provider.

AB207-engrossed,8,17 (q) "Low-income household" means any individual or group of individuals living together as one economic unit in a household whose aggregate annual income is not more than $35,000, as identified by the United States Census Bureau as of January 1, 2007.

AB207-engrossed,8,18 (r) "Municipality" means a city, village, or town.

AB207-engrossed,8,20 (s) "PEG channel" means a channel designated for noncommercial public, educational, or governmental use.

AB207-engrossed,8,21 (sm) "Qualified cable operator" means any of the following:

AB207-engrossed,8,24 1. A cable operator that has been providing cable service in this state for at least 3 years prior to applying for a video service franchise and that has never had a cable franchise revoked by a municipality.

AB207-engrossed,8,25 2. An affiliate of a cable operator specified in subd. 1.

AB207-engrossed,9,5 3. A cable operator that, on the date that it applies for a video service franchise, individually or together with its affiliates or parent company, is one of the 10 largest cable operators in the United States as determined by data collected and reported by the FCC or determined by information available to the public through a national trade association representing cable operators.

AB207-engrossed,9,7 (t) "Service tier" means a category of video service for which a separate rate is charged.

AB207-engrossed,9,9 (u) "State agency" means any board, commission, department, or office in the state government.

AB207-engrossed,9,10 (um) "Telecommunications utility" has the meaning given in s. 196.01 (10).

AB207-engrossed,9,13 (v) "Telecommunications video service provider" means a video service provider that uses facilities for providing telecommunications service, as defined in s. 196.01 (9m), also to provide video service.

AB207-engrossed,9,15 (w) "Video franchise area" means the area or areas described in an application for a video service franchise under sub. (3) (d) 2.

AB207-engrossed,9,17 (x) "Video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

AB207-engrossed,9,22 (y) "Video service" means any video programming service, cable service, or service provided via an open video system that complies with 47 USC 573, that is provided through facilities located at least in part in public rights-of-way, without regard to delivery technology, including Internet protocol technology or any other technology. "Video service" does not include any of the following:

AB207-engrossed,9,24 1. Video programming provided by a commercial mobile radio service provider, as defined in s. 196.01 (2g).

AB207-engrossed,10,3 2. Video programming provided solely as part of and via a service that enables users to access content, information, electronic mail, or any other service offered over the public Internet.

AB207-engrossed,10,4 (z) "Video service franchise" means a franchise issued under sub. (3) (f) 2.

AB207-engrossed,10,8 (zb) "Video service network" means wireline facilities, or any component thereof, located at least in part in the public right-of-way that deliver video service, without regard to delivery technology, including Internet protocol technology or any other technology. "Video service network" includes a cable system.

AB207-engrossed,10,11 (zg) "Video service provider" means a person, including an incumbent cable operator, who is issued a video service franchise or a successor or assign of such a person.

AB207-engrossed,10,13 (zm) "Video service provider fee" means the fee paid by a video service provider under sub. (7).

AB207-engrossed,10,17 (3) Authority to provide video service. (a) In general. Except for an interim cable operator, and except as provided in par. (c) and sub. (11), no person may provide video service in this state unless the department has issued a video service franchise to the person and the person has provided the notice required under par. (h).

AB207-engrossed,10,20 (b) Incumbent cable operators. 1. A municipality may not renew or extend the cable franchise of an incumbent cable operator that expires after the effective date of this subdivision .... [revisor inserts date].

AB207-engrossed,10,21 2. An incumbent cable operator may do one of the following:

AB207-engrossed,10,23 a. Continue to provide cable service as an interim cable operator until the cable franchise expires.

AB207-engrossed,11,5 b. Apply for a video service franchise. If an incumbent cable operator applies for a video service franchise, the cable franchise shall terminate and have no effect upon issuance of the video service franchise. Upon termination of the cable franchise, the municipality that granted the franchise shall, at the request of the incumbent cable operator, surrender, return, or take such other action as may be necessary to nullify any bond, letter of credit, or similar instrument intended to secure the performance of the incumbent cable operator under the cable franchise.

AB207-engrossed,11,16 3. An incumbent cable operator whose cable franchise expires after the effective date of this subdivision .... [revisor inserts date], may not, after expiration of the cable franchise, provide video service in this state unless the incumbent cable operator applies for a video service franchise under subd. 2. b. and, upon issuance of the video service franchise, provides the notice required under par. (h). An incumbent cable operator whose cable franchise expired before the effective date of this subdivision .... [revisor inserts date], and who was providing cable service immediately before the effective date of this act, may continue to provide cable service if, no later than the first day of the 2nd month beginning after the effective date of this subdivision .... [revisor inserts date], the incumbent cable operator applies for a video service franchise under subd. 2. b.

AB207-engrossed,11,23 (c) Other providers. A person, other than an incumbent cable operator, who was providing video service immediately before the effective date of this paragraph .... [revisor inserts date], may provide video service without a video service franchise issued by the department. This paragraph ceases to apply to such a person if the person does not apply for a video service franchise no later than the first day of the 2nd month beginning after the effective date of this paragraph .... [revisor inserts date].

AB207-engrossed,11,25 (d) Application. An applicant for a video service franchise shall submit an application to the department that consists of all of the following:

AB207-engrossed,12,3 1. The location and telephone number of the applicant's principal place of business, the names of the principal executive officers of the applicant, and the names of any persons authorized to represent the applicant before the department.

AB207-engrossed,12,5 2. A description of the area or areas of the state in which the applicant intends to provide video service.

AB207-engrossed,12,7 3. The date on which the applicant intends to begin providing video service in the video franchise area.

AB207-engrossed,12,9 4. An affidavit signed by an officer or general partner of the applicant that affirms all of the following:

AB207-engrossed,12,11 a. That the applicant has filed or will timely file with the FCC all forms required by the FCC in advance of offering video service.

AB207-engrossed,12,13 b. That the applicant agrees to comply with this section and all applicable federal statutes and regulations.

AB207-engrossed,12,15 c. That the applicant is legally, financially, and technically qualified to provide video service.

AB207-engrossed,12,16 5. A description of the services that the applicant proposes to provide.

AB207-engrossed,12,18 6. An application fee of $2,000, or, if the applicant is applying for a modified video service franchise as required under par. (j), an application fee of $100.

AB207-engrossed,12,23 (e) Service upon municipalities. 1. At the time that an applicant submits an application under par. (d), or a video service provider submits a notification regarding a modification to an application under par. (j), to the department, the applicant or video service provider shall serve a copy of the application or notification on each municipality in the video franchise area.

AB207-engrossed,13,4 2. a. This subdivision applies only to a municipality that, under subd. 1., is served a copy of an application or that, under subd. 1., is served a copy of a notification relating to an expansion of the area or areas of the state in which a video service provider intends to provide video service, if the municipality has not previously been served a copy of an application under subd. 1. by that video service provider.

AB207-engrossed,13,13 b. If a municipality specified in subd. 2. a. has granted any cable franchise that is in effect immediately before the effective date of this subdivision .... [revisor inserts date], the municipality shall, no later than 10 business days after receipt of the copy, notify the applicant in writing of the number of PEG channels for which incumbent cable operators are required to provide channel capacity in the municipality, the amount and type of monetary support for access facilities for PEG channels required of incumbent cable operators as described in sub. (7) (em), and the percentage of revenues that incumbent cable operators are required to pay the municipality as franchise fees.

AB207-engrossed,13,17 (f) Department duties. 1. No later than 15 business days after the filing of an application, the department shall notify the applicant in writing as to whether the application is complete and, if the department has determined that the application is not complete, the department shall state the reasons for the determination.

AB207-engrossed,14,3 2. No later than 15 business days after the filing of an application that the department has determined is complete, the department shall determine whether an applicant is legally, financially, and technically qualified to provide video service. If the department determines that an applicant is legally, financially, and technically qualified to provide video service, the department shall issue a video service franchise to the applicant. If the department determines that an applicant is not legally, financially, and technically qualified to provide video service, the department shall reject the application and shall state the reasons for the determination. If the department fails to make the determination, the department shall be considered to have issued a video service franchise to the applicant, unless the applicant withdraws the application or agrees with the department to an extension of time.

AB207-engrossed,14,7 3. Notwithstanding subd. 2., if an applicant is a large telecommunications video service provider or qualified cable operator, the department shall determine that the applicant is legally, financially, and technically qualified to provide video service.

AB207-engrossed,14,11 4. The department shall promulgate rules for determining whether an applicant that is not a large telecommunications video service provider or qualified cable operator is legally, financially, and technically qualified to provide video service.

AB207-engrossed,14,15 (g) Effect of video service franchise. A video service franchise issued by the department authorizes a video service provider to occupy the public rights-of-way and to construct, operate, maintain, and repair a video service network to provide video service in the video franchise area.

AB207-engrossed,14,18 (h) Notice before providing service. No later than 10 business days before providing video service in a municipality in a video franchise area, a video service provider shall provide notice to the department and the municipality.

AB207-engrossed,14,24 (i) Expiration and revocation of video service franchise. 1. Except as provided in subd. 2., a video service franchise issued to a video service provider does not expire, unless the video service provider gives 30 days' advance notice to the department that the video service provider intends to terminate the video service franchise. If a video service provider gives such notice, the video service franchise shall expire on the termination date stated in the notice.

AB207-engrossed,15,16 2. The department may revoke a video service franchise issued to a video service provider if the department determines that the video service provider has repeatedly failed to substantially meet a material requirement imposed upon it by this section and the department has not otherwise acquiesced in such noncompliance through a waiver. Before commencing a revocation proceeding, the department shall provide the video service provider written notice of the department's intention to revoke the franchise and the department's reasons for the revocation and afford the video service provider a reasonable opportunity to cure any alleged violation. The department must, before revoking any video service franchise, afford a video service provider full due process that, at a minimum, must include a proceeding before a hearing officer during which the video service provider must be afforded the opportunity for full participation, including the right to be represented by counsel, to introduce evidence, to require the production of evidence, and to question or cross-examine witnesses under oath. A transcript shall be made of any such hearing. A video service provider may bring an action to appeal the decision of the department.

AB207-engrossed,16,2 (j) Modifications. If there is any change in the information included in an application filed by a video service provider under this subsection, the video service provider shall notify the department and update the information within 10 business days after the change, except that if the video service provider determines to expand the area or areas of the state in which the video service provider intends to provide video service, the video service provider shall apply to the department for a modified video service franchise under par. (d). A video service provider that makes a notification regarding a change in the information specified in par. (d) 3., 4., or 5., shall include with the notification a fee of $100. No fee is required for a notification regarding a change in the information specified in par. (d) 1.

AB207-engrossed,16,10 (4) Franchising authority. For purposes of 47 USC 521 to 573, the state is the exclusive franchising authority for video service providers in this state. Notwithstanding s. 66.0425 and except as provided in s. 182.017, no municipality may require a video service provider to obtain a franchise to provide video service or impose on a video service provider any fee or requirement relating to the construction of a video service network or the provision of video service, including any requirement to deploy facilities or equipment or any requirement regarding rates for video service, except as specifically authorized under this section.

AB207-engrossed,16,18 (5) PEG channels. (a) Maximum number of PEG channels. 1. If an incumbent cable operator is providing channel capacity for PEG channels to a municipality under a cable franchise in effect immediately before the effective date of this subdivision .... [revisor inserts date], the municipality shall require each interim cable operator or video service provider that provides video service in the municipality to provide channel capacity for the same number of PEG channels for which channel capacity is provided immediately before the effective date of this subdivision .... [revisor inserts date].

AB207-engrossed,17,3 2. a. Except as provided in subd. 2. b. and c., if no incumbent cable operator is providing channel capacity for PEG channels to a municipality under a cable franchise that is in effect immediately before the effective date of this subd. 2. a. .... [revisor inserts date], then, if the municipality has a population of 50,000 or more, the municipality may require each interim cable operator and video service provider that provides video service in the municipality to provide channel capacity for up to 3 PEG channels, and, if the municipality has a population of less than 50,000, the municipality may require each interim cable operator and video service provider that provides video service in the municipality to provide channel capacity for no more than 2 PEG channels.

AB207-engrossed,17,9 b. If an interim cable operator or video service provider distributes video programming to more than one municipality through a single headend or video hub office and the aggregate population of the municipalities is 50,000 or more, the municipalities may not require the interim cable operator or video service provider to provide, in the aggregate, channel capacity for more than 3 PEG channels under subd. 2. a.

AB207-engrossed,17,15 c. If an interim cable operator or video service provider distributes video programming to more than one municipality through a single headend or video hub office and the aggregate population of the municipalities is less than 50,000, the municipalities may not require the interim cable operator or video service provider to provide, in the aggregate, channel capacity for more than 2 PEG channels under subd. 2. a.

AB207-engrossed,17,19 3. An interim cable operator or video service provider shall provide any channel capacity for PEG channels required under this paragraph on any service tier that is viewed by more than 50 percent of the interim cable operator's or video service provider's customers.

AB207-engrossed,18,3 4. If a municipality is not required to provide notice to a video service provider under sub. (3) (e) 2., the video service provider's duty to provide any additional channel capacity for PEG channels that is required by the municipality under this paragraph first applies on the date that the video service provider begins to provide service in the municipality, and, if the municipality is required to provide notice under sub. (3) (e) 2., the video service provider's duty to provide any such additional channel capacity first applies on the date that the video service provider begins to provide video service in the municipality or on the 90th day after the video service provider receives the municipality's notice, whichever is later.

AB207-engrossed,18,13 (b) Exceptions. 1. a. Notwithstanding par. (a), an interim cable operator or video service provider may reprogram for any other purpose any channel capacity provided for a PEG channel required by a municipality under par. (a) if the PEG channel is not substantially utilized by the municipality. If the municipality certifies to the interim cable operator or video service provider that reprogrammed channel capacity for a PEG channel will be substantially utilized by the municipality, the interim cable operator or video service provider shall, no later than 120 days after receipt of the certification, restore the channel capacity for the PEG channel. Notwithstanding par. (a) 3., an interim cable operator or video service provider may provide restored channel capacity for a PEG channel on any service tier.

AB207-engrossed,18,17 b. For purposes of this subdivision, a PEG channel is substantially utilized by a municipality if the municipality provides 40 hours or more of programming on the PEG channel each week and at least 60 percent of that programming is locally produced.

AB207-engrossed,18,23 2. Notwithstanding par. (a), if a municipality fails to provide the notice specified in sub. (3) (e) 2. before the deadline specified in sub. (3) (e) 2., no interim cable operator or video service provider is required to provide channel capacity for any PEG channel, or monetary support for access facilities for PEG channels pursuant to sub. (7) (em), until the 90th day after the municipality provides such notice.

AB207-engrossed,19,3 (c) Powers and duties of municipalities. 1. Except as otherwise required under pars. (a) and (d) and sub. (7) (em), a municipality may not require an interim cable operator or video service provider to provide any funds, services, programming, facilities, or equipment related to public, educational, or governmental use of channel capacity.

AB207-engrossed,19,9 2. The operation of any PEG channel for which a municipality requires an interim cable operator or video service provider to provide channel capacity under par. (a), and the production of any programming appearing on such a PEG channel, shall be the sole responsibility of the municipality and, except as provided in par. (d) 1., the interim cable operator or video service provider shall bear only the responsibility to transmit programming appearing on the PEG channel.

AB207-engrossed,19,12 3. A municipality that requires an interim cable operator or video service provider to provide channel capacity for a PEG channel under par. (a) shall do all of the following:

AB207-engrossed,19,20 a. Ensure that all content and programming that the municipality provides or arranges to provide for transmission on the PEG channel is submitted to the interim cable operator or video service provider in a manner and form that is capable of being accepted and transmitted by the interim cable operator or video service provider over its video service network without changing the content or transmission signal and that is compatible with the technology or protocol, including Internet protocol television, utilized by the interim cable operator or video service provider to deliver video service.

AB207-engrossed,19,24 b. Make the content and programming that the municipality provides or arranges to provide for transmission on a PEG channel available in a nondiscriminatory manner to all interim cable operators and video service providers that provide video service in the municipality.

AB207-engrossed,20,20 (d) Duties of interim cable providers and video service providers. 1. If a municipality requires an interim cable operator or video service provider to provide capacity for PEG channels under par. (a), the interim cable operator or video service provider shall be required to provide transmission capacity sufficient to connect the interim cable operator's or video service provider's headend or video hub office to the municipality's PEG access channel origination points existing as of the effective date of this subdivision .... [revisor inserts date]. A municipality shall permit the interim cable operator or video service provider to determine the most economically and technologically efficient means of providing such transmission capacity. If a municipality requests that such a PEG access channel origination point be relocated, the interim cable operator or video service provider shall be required to provide only the first 200 feet of transmission line that is necessary to connect the interim cable operator or video service provider's headend or video hub office to such origination point. A municipality shall be liable for the costs of construction of such a transmission line beyond the first 200 feet and for any construction costs associated with additional origination points, but not for the costs associated with the transmission of PEG programming over such line. The interim cable operator or video service provider may recover its costs to provide transmission capacity under this subdivision by identifying and collecting a "PEG Transport Fee" as a separate line item on customer bills.

AB207-engrossed,21,5 2. If the interconnection of the video service networks of interim cable operators or video service providers is technically necessary and feasible for the transmission of programming for any PEG channel for which channel capacity is required by a municipality under par. (a), the interim cable operators and video service providers shall negotiate in good faith for interconnection on mutually acceptable rates, terms, and conditions, except that an interim cable operator or video service provider who requests interconnection is responsible for interconnection costs, including the cost of transmitting programming from its origination point to the interconnection point. Interconnection may be accomplished by direct cable, microwave link, satellite, or any other reasonable method.

AB207-engrossed,21,10 (6) Institutional networks. Notwithstanding any franchise, ordinance, or resolution in effect on the effective date of this subsection .... [revisor inserts date], no state agency or municipality may require an interim cable operator or video service provider to provide any institutional network or equivalent capacity on its video service network.

AB207-engrossed,21,25 (7) Video service provider fee. (a) Duty to pay fee. 1. Notwithstanding s. 66.0611 and except as provided in subds. 2. and 2m., a video service provider shall, on a quarterly calendar basis, calculate and pay to each municipality in which the video service provider provides video service a video service provider fee equal to the percentage of the video service provider's gross receipts that is specified in par. (b) and the monetary support for access facilities for PEG channels described in par. (em). A video service provider shall remit the fee to the municipality no later than 45 days after the end of each quarter. Except as provided in subd. 2. or par. (b) 1., if the municipality is not required to provide notice under sub. (3) (e) 2., the duty to remit the fee first applies to the quarter in which the video service provider begins to provide service in the municipality, and, if the municipality is required to provide notice under sub. (3) (e) 2., the duty to remit the fee first applies to the quarter in which the video service provider begins to provide service in the municipality or to the quarter that includes the 45th day after the video service provider receives the municipality's notice, whichever quarter is later.

AB207-engrossed,22,5 2. If a municipality fails to provide the notice specified in sub. (3) (e) 2. before the deadline specified in sub. (3) (e) 2., no video service provider is required to pay a video service provider fee, and no interim cable operator is required to pay a franchise fee, to the municipality until the 45th day after the end of the quarter in which the municipality provides the notice specified in sub. (3) (e) 2.

AB207-engrossed,22,9 2m. If a municipality requires a video service provider to pay a cost-based permit fee under a regulation under s. 182.017 (1r), the video service provider may deduct the amount of the fee from any other compensation that is due to the municipality including the video service provider fee under subd. 1.

AB207-engrossed,22,12 (b) Amount of fee. The percentage applied to a video service provider's gross receipts under par. (a) 1. for each municipality shall be 5 percent or one of the following percentages, whichever is less:

AB207-engrossed,22,19 1. If no incumbent cable operator was required to pay a franchise fee equal to a percentage of gross revenues to the municipality immediately before the effective date of this subdivision .... [revisor inserts date], the municipality may specify a percentage of no more than 5 percent. The duty of a video service provider to pay the municipality a video service fee equal to such percentage shall first apply to the quarter that includes the 45th day after the municipality provides notice of the percentage to the video service provider.

AB207-engrossed,22,22 2. If an incumbent cable operator was required to pay a franchise fee equal to a percentage of gross revenues to the municipality immediately before the effective date of this subdivision .... [revisor inserts date], that percentage.

AB207-engrossed,23,2 3. If more than one incumbent cable operator was required to pay a franchise fee equal to a percentage of gross revenues to the municipality immediately before the effective date of this subdivision .... [revisor inserts date], the lowest such percentage.

AB207-engrossed,23,5 (c) Generally accepted accounting principles. All determinations and computations made under this subsection shall be made pursuant to generally accepted accounting principles.

AB207-engrossed,23,10 (d) Record review. A municipality may, upon reasonable written request but no more than once in any 3-year period, for the purpose of ensuring proper and accurate payment of a video service provider fee, review the business records of a video service provider that is required to pay the municipality a video service provider fee.

AB207-engrossed,23,16 (e) Actions to enforce payment. 1. A municipality or a video service provider may not bring an action concerning the amount of a video service provider fee allegedly due to the municipality unless the parties have first participated in and completed good faith settlement discussions. For purposes of any future litigation, all negotiations pursuant to this paragraph shall be treated as compromise negotiations under s. 904.08.

AB207-engrossed,23,22 2. An action regarding a dispute over the amount of a video service provider fee paid or allegedly due under this subsection shall be commenced within 4 years following the end of the calendar quarter to which the disputed amount relates or be barred, unless the parties agree in writing to an extension of time. Notwithstanding ss. 814.01, 814.02, 814.03, and 814.035, no costs may be allowed in the action to either party.

AB207-engrossed,24,4 (em) PEG channel monetary support. 1. This subdivision applies to an incumbent cable operator whose cable franchise is terminated under sub. (3) (b) 2. b. The obligation that is actually imposed by a municipality prior to April 18, 2007, on such an incumbent cable operator to provide monetary support for access facilities for PEG channels and that is contained in a cable franchise existing on the effective date of this subdivision .... [revisor inserts date], shall continue until the earlier of the following:

AB207-engrossed,24,6 a. The first day of the 36th month beginning after the effective date of this subd. 1. a. .... [revisor inserts date].

AB207-engrossed,24,8 b. The date on which the cable franchise would have expired if the cable franchise had not terminated under sub. (3) (b) 2. b.

AB207-engrossed,24,12 2. The duty of an interim cable operator to provide monetary support for access facilities for PEG channels that is contained in a cable franchise existing on the effective date of this subdivision .... [revisor inserts date], shall continue until the cable franchise expires.

AB207-engrossed,24,25 3. Each video service provider providing video service in a municipality shall have the same obligation to provide monetary support for access facilities for PEG channels as the incumbent cable operator with the most subscribers in the municipality as of the effective date of this subdivision .... [revisor inserts date]. To the extent that such incumbent cable operator provides such support in the form of a percentage of gross revenues or a per subscriber fee, any other video service provider shall pay the same percentage of gross revenues or per subscriber fee to the municipality as the incumbent cable operator. To the extent that such incumbent cable operator provides such support in the form of a lump sum payment without an offset to its franchise fee or video service provider fee, any other video service provider that commences service in the municipality shall pay the municipality a sum equal to the pro rata amount of such lump sum payment based on its proportion of video service customers in such municipality.

AB207-engrossed,25,4 4. For purposes of this paragraph, the proportion of video service customers of a video service provider shall be determined based on the relative number of subscribers as of the end of the prior calendar year as reported by all incumbent cable operators and holders of video service authorizations.

AB207-engrossed,25,8 (f) Itemization. A video service provider may identify and collect the amount related to a video service provider fee and any fee imposed for monetary support for access facilities for PEG channels as described in par. (em) as a separate line item on customer bills.

AB207-engrossed,25,14 (g) Invalidity of other fees. If a video service provider pays video service provider fees to a municipality as required under this subsection, the municipality may not require the video service provider to pay any compensation under s. 66.0425, or, except as provided in a regulation under s. 182.017 (1r), any permit fee, encroachment fee, degradation fee, or any other fee, for the occupation of or work within public rights-of-way.

AB207-engrossed,25,16 (8) Discrimination; access to services. (ag) Definition. In this subsection, "department" means the department of agriculture, trade and consumer protection.

AB207-engrossed,25,20 (am) Discrimination prohibited. 1. No video service provider may deny access to video service to any group of potential residential customers in the video service provider's video franchise area because of the race or income of the residents in the local area in which the group resides.