Bill Text: HI HB984 | 2010 | Regular Session | Amended

Hawaii House Bill 984 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Hawaii Broadband commissioner; Broadband Regulation; Broadband Franchising; Broadband Permitting

Spectrum: Partisan Bill (Democrat 34-0)

Status: (Enrolled - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [HB984 Detail]

Download: Hawaii-2010-HB984-Amended.html

Report Title:

Hawaii Broadband commissioner; Broadband Regulation; Broadband Franchising; Broadband Permitting

Description:

Implements key recommendations of the Hawaii broadband task force by establishing the Hawaii broadband commissioner (HBC) in the department of commerce and consumer affairs (DCCA). Transfers functions relating to telecommunications from the public utilities commission to the HBC and functions relating to cable services from DCCA to the HBC. Establishes a work group to develop procedures to streamline state and county broadband regulation, franchising, and permitting and report to the legislature. (SD2)

HOUSE OF REPRESENTATIVES	H.B. NO.	984
TWENTY-FIFTH LEGISLATURE, 2009		H.D. 4
STATE OF HAWAII		S.D. 2
		(WAM)

A BILL FOR AN ACT

RELATING TO TECHNOLOGY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Through Act 2 of the first special session of 2007, the legislature created the Hawaii broadband task force to provide recommendations on how to advance Hawaii's broadband capabilities and use. The legislature finds that advanced broadband services are essential infrastructure for an innovation economy and a knowledge society in the twenty-first century. High-speed broadband services at affordable prices are essential for the advancement of education, health, public safety, research and innovation, civic participation, e‑government, economic development and diversification, and public safety and services. The legislature also recognizes the evolution in the manner in which communications and information services are delivered to the consumer, including by wireline, wireless, cable television, and satellite infrastructures, and that the voice, video, and data services provided over these infrastructures are converging. In order to position Hawaii for global competitiveness in the twenty-first century, this Act promotes the following goals:

(1) Access to broadband communications to all households, businesses, and organizations throughout the State by 2012 at speeds and prices comparable to the average speeds and prices available in the top three performing countries in the world;

(2) Availability of advanced broadband communications service on a competitive basis to reduce prices, increase service penetration, and improve service to all persons in the State;

(3) Increased broadband availability at affordable costs to low-income and other disadvantaged groups, including by making low-cost, broadband-capable computers available to eligible recipients;

(4) Increased sharing of the infrastructure used to deploy broadband in order to speed up implementation, reduce costs to providers, reduce underlying costs to providers through incentives rather than eminent domain procedures, ease deployment of broadband, and ease entry into a competitive broadband marketplace;

(5) Increased, flexible, timely, and responsible access to public rights-of-way and public facilities for broadband service providers; and

(6) A more streamlined permit approval process that reduces the time and cost of infrastructure deployment, to be created jointly by disparate permitting agencies, stakeholders, and other interested parties.

SECTION 2. The purpose of this Act is to establish the Hawaii broadband commissioner as an independent agency that is attached to the department of commerce and consumer affairs for administrative purposes only and require the commissioner to:

(1) Investigate, promote, and ensure the growth and development of broadband infrastructure within the State in accordance with the aforementioned goals;

(2) Champion the State's broadband, telecommunications, and video programming services interests before the federal government, including the United States Congress, the executive branch of the United States, and the Federal Communications Commission; and state and local agencies, including the governor, the legislature, and county governments;

(3) Maintain close working relationships with community groups, civic associations, industry trade organizations, industry leaders, and other stakeholders to ensure that the State's interests and concerns are understood;

(4) Develop state policies relating to the provision of broadband communications services and interstate and international communications services and facilities serving or transiting the State of Hawaii;

(5) Facilitate the construction and voluntary sharing of shared telecommunications and broadband infrastructure and expand the introduction and capabilities of advanced broadband communications services where appropriate and permissible under federal law;

(6) Consolidate the regulation of telecommunications carriers currently regulated by the public utilities commission and cable operators currently regulated by the director of commerce and consumer affairs, to create a unified agency to allow businesses providing broadband, telecommunications, and video programming services to make their services more readily available to the public;

(7) Promptly examine rate regulation for telecommunications carriers, including alternatives such as price cap regulation; and

(8) Investigate the implementation of incentive regulation for telecommunications carriers to increase investment in broadband infrastructure within the State.

SECTION 3. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

HAWAII BROADBAND COMMISSIONER

Part I. GENERAL PROVISIONS

§ ‑1 Definitions. As used in this chapter, unless the context otherwise requires:

"Access organization" means any nonprofit organization designated by the commissioner to oversee the development, operation, supervision, management, production, or broadcasting of programs for any channels obtained under section ‑67, and any officers, agents, and employees of an organization with respect to matters within the course and scope of their employment by the access organization.

"Applicant" means a person who initiates an application or proposal.

"Application" means an unsolicited filing.

"Basic cable service" means any service tier that includes the retransmission of local television broadcast signals.

"Broadband" means an "always on" data networking service that enables end users to access the Internet and use a variety of applications, at minimum speeds set by the commissioner.

"Cable franchise" means a nonexclusive initial authorization, or renewal thereof issued pursuant to this chapter, whether the authorization is designated as a franchise, permit, order, contract, agreement, or otherwise, which authorizes the construction or operation of a cable system.

"Cable operator" means any person or group of persons who:

(1) Provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in the cable system; or

(2) Otherwise controls or is responsible for, through any arrangement, the management and operation of a cable system.

"Cable service" means:

(1) The one-way transmission to subscribers of video programming or other programming service; and

(2) Subscriber interaction, if any, which is required for the selection of video programming or other programming service.

"Cable system" means any facility within this State consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but does not include a facility:

(1) That serves only to retransmit the television signals of one or more television broadcast stations;

(2) That serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless that facility or facilities uses any public right-of-way; or

(3) Of a telecommunications carrier subject in whole or in part to the provisions of part II of this chapter, except to the extent that those facilities provide video programming directly to subscribers.

"Carrier of last resort" means a telecommunications carrier designated by the commissioner to provide universal service in a given local exchange service area determined to be lacking in effective competition.

"Department" means the department of commerce and consumer affairs.

"Designated local exchange service area" means an area as determined by the commissioner to be best served by designating a carrier of last resort pursuant to section ‑43.

"Director" means the director of commerce and consumer affairs.

"Facility" includes all real property, antennae, poles, supporting structures, wires, cables, conduits, amplifiers, instruments, appliances, fixtures, and other personal property used by a cable operator in providing service to its subscribers.

"Hawaii broadband commissioner" or "commissioner" has the same meaning as in section ‑2.

"Institution of higher education" means an academic college or university accredited by the Western Association of Schools and Colleges.

"Other programming service" means information that a cable operator makes available to all subscribers generally.

"Person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental agency.

"Proposal" means a filing solicited by the commissioner.

"Public, educational, or governmental access facilities" or "PEG access facility" means:

(1) Channel capacity designated for public, educational, or governmental uses; and

(2) Facilities and equipment for the use of that channel capacity.

"Public, educational, or governmental access organization" or "PEG access organization" means any person or entity that provides public, educational, or governmental access services.

"Public place" includes any property, building, structure, or body of water to which the public has a right of access and use.

"School" means an academic and non-college type regular or special education institution of learning established and maintained by the department of education or licensed and supervised by that department and includes charter schools as defined in chapter 302B.

"Service area" means the geographic area for which a cable operator has been issued a cable franchise.

"Telecommunications carrier" or "telecommunications common carrier" means any person that owns, operates, manages, or controls any facility used to furnish telecommunications services for profit to the public, or to classes of users as to be effectively available to the public, engaged in the provision of services, such as voice, data, image, graphics, and video services, that make use of all or part of their transmission facilities, switches, broadcast equipment, signaling, or control devices.

"Telecommunications service" or "telecommunications" means the offering of transmission between or among points specified by a user, of information of the user's choosing, including voice, data, image, graphics, and video without change in the form or content of the information, as sent and received, by means of electromagnetic transmission, or other similarly capable means of transmission, with or without benefit of any closed transmission medium, and does not include cable service as defined in this section.

"Video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

§ ‑2 Hawaii broadband commissioner. There shall be established the Hawaii broadband commissioner as an independent agency that is attached to the department of commerce and consumer affairs for administrative purposes only. The implementation of this chapter shall be placed under the supervision and control of the Hawaii broadband commissioner, who shall be exempt from chapter 76 and shall be appointed by the governor, with the advice and consent of the senate.

§ ‑3 Deputy commissioner. The commissioner may appoint a deputy commissioner, who shall be exempt from chapter 76. The commissioner may, at pleasure, dismiss the deputy commissioner. The deputy commissioner shall have the power to perform any act or duty assigned by the commissioner and shall be acting commissioner if, for any reason, the commissioner is unable to perform the duties of commissioner, until a new commissioner is appointed.

§ ‑4 Employment of commissioner personnel. (a) The commissioner may appoint and employ office assistants, agents, engineers, accountants, and other personnel, with or without regard to chapter 76; provided that:

(1) The commissioner may employ utility and cable analysts exempt from chapter 76; and

(2) Each analyst shall possess at least the minimum qualifications required of comparable experts in the relevant industry.

(b) The commissioner may appoint and, at pleasure, dismiss hearings officers as may be necessary, with or without regard to chapter 76.

(c) The commissioner may, with the consent of the director, utilize staff including office assistants, agents, engineers, accountants, hearings officers, and other personnel from the department, as the commissioner finds necessary for the performance of the commissioner's functions, and define their powers and duties.

(d) The commissioner may appoint one or more attorneys independent of the attorney general who shall act as attorney(s) for the commissioner and shall be exempt from chapter 76. The commissioner shall define their powers and duties and fix their compensation.

(e) With the consent of the director, the commissioner may utilize from the department, one or more attorneys independent of the attorney general who shall act as attorney(s) for the commissioner and shall be exempt from chapter 76. The commissioner shall define the powers and duties of the attorneys and fix their compensation.

§ ‑5 Terms. The commissioner shall be appointed for a term of six years and shall not serve more than twelve consecutive years. Each commissioner shall hold office until the commissioner's successor is appointed and confirmed. Section 26-34 shall not apply insofar as it relates to the number of terms and consecutive number of years a commissioner may serve.

§ ‑6 Salary. The salary of the commissioner shall be set equal to that of the chairperson of the public utilities commission pursuant to section 269-2.

§ ‑7 General powers and duties. (a) The commissioner shall have the authority expressly conferred upon the commissioner by, or reasonably implied from, the provisions of this chapter.

(b) The commissioner shall have general supervision over all telecommunications carriers and cable operators and shall perform the duties and exercise the powers imposed or conferred upon it by this chapter, as permitted by federal law.

(d) The commissioner shall have general supervision over public, educational, or governmental access facilities and public, educational, or governmental access organizations.

§ ‑8 Communications development duties. (a) The commissioner shall strive to ensure that all consumers are provided with reasonable and equitable access to high quality communications network facilities and capabilities that provide subscribers with sufficient network capacity to access a combination of voice, data, image, and video, and that are available at fair and affordable rates.

(b) No later than July 1, 2011, the commissioner shall study and develop a comprehensive policy to further deploy broadband communications, including internet access, in the State. The study shall include consideration of communications by wire and radio, including satellite and wireless services. The commissioner shall develop plans and strategies to increase broadband affordability, penetration, and competitive availability in the State. The plans may include making low‑cost, broadband-capable computers available to eligible recipients. The commissioner shall regularly update and revise the commissioner's studies and findings to ensure that the State's policies and initiatives remain effective in promoting the State's interests.

(c) The commissioner shall develop programs and initiatives intended to facilitate the deployment of broadband communications services in the State and access to those services by users in the State. The commissioner shall fund these programs and initiatives using funds collected pursuant to sections ‑23, ‑51, ‑73, ‑75, and 92-21 and deposited in the commissioner special fund pursuant to section ‑20. In conjunction with the funds, or alternatively, the commissioner may seek appropriations of funds from the State.

(d) The commissioner shall develop, and routinely update, a state policy and formulate positions to be taken before federal agencies regarding areas outside its jurisdiction. The commissioner shall advocate on behalf of the State's broadband, telecommunications, and video programming distribution interests before the United States Congress, the executive branch of the United States, and the Federal Communications Commission, and locally before the governor, the state legislature, and municipal and county governments. The commissioner shall also maintain close working relationships with community groups, civic associations, industry trade associations, industry leaders, and other stakeholders to ensure that the State's interests and concerns are understood.

§ ‑9 Investigative powers. (a) The commissioner shall have power to examine:

(1) The condition of each telecommunications carrier, cable operator, and PEG access organization;

(2) The manner in which each telecommunications carrier, cable operator, and PEG access organization is operated with reference to the safety or accommodation of the public;

(3) The safety, working hours, and wages of employees of each telecommunications carrier, cable operator, and PEG access organization;

(4) The fares and rates charged by each telecommunications carrier, cable operator, and PEG access organization;

(5) The value of the physical property of each telecommunications carrier, cable operator, and PEG access organization;

(6) The issuance by each telecommunications carrier, cable operator, and PEG access organization of stocks and bonds, and the disposition of the proceeds thereof;

(7) The amount and disposition of income of each telecommunications carrier, cable operator, and PEG access organization, and all financial transactions of each telecommunications carrier, cable operator, and PEG access organization;

(8) Business relations of each telecommunications carrier, cable operator, and PEG access organization with other persons, companies, or corporations;

(9) Compliance of each telecommunications carrier, cable operator, and PEG access organization with all applicable state and federal laws and with the provisions of its franchise, charter, and articles of association, if any; and

(10) Classifications, rules, regulations, practices, and service, and all matters of every nature affecting the relations and transactions between each telecommunications carrier, cable operator, and PEG access organization and the public or persons or corporations.

(b) The commissioner may investigate any person acting in the capacity of or engaging in the business of a telecommunications carrier within the State of Hawaii without having a certificate of public convenience and necessity or other authority previously obtained under and in compliance with this chapter or the rules adopted under this chapter or chapter 269.

(c) Any investigation may be made by the commissioner on the commissioner's own motion, and may be made when requested by the telecommunications carrier, cable operator, or PEG access organization to be investigated, or by any person upon a sworn written complaint to the commissioner, setting forth any prima facie cause of complaint.

§ ‑10 Delegating powers. Any power, duty, or function vested in the commissioner by this chapter may be exercised, discharged, or performed by any employee of the commissioner employed pursuant to section ‑4(a), ‑4(b), or ‑4(d) acting in the name and by the delegated authority of the commissioner. Any power, duty, or function vested in the commissioner by this chapter may be exercised, discharged, or performed by any employee of the department utilized pursuant to section ‑4(c) or ‑4(e) acting in the name and by the delegated authority of the commissioner, with the approval of the director.

§ ‑11 Annual report and register of orders. The commissioner shall prepare and present to the governor, through the director, in the month of January in each year a report respecting the commissioner's actions during the preceding fiscal year. This report shall include:

(1) Summary information and analytical, comparative, and trend data concerning major regulatory issues acted upon and pending before the commissioner;

(2) Cases processed by the commissioner, including their dispositions;

(3) Telecommunications carrier and cable operator operations, capital improvements, and rates;

(4) Telecommunications carrier and cable operator performance in terms of efficiency and quality of services rendered;

(5) Environmental matters having a significant impact upon telecommunications carriers and cable operators;

(6) Actions of the federal government affecting the regulation of telecommunications carriers and cable operators in the State;

(7) Long‑ and short-range plans and objectives of the commissioner; and

(8) The commissioner's recommendations respecting legislation and other matters requiring executive and legislative consideration.

Copies of the annual reports shall be furnished by the governor to the legislature. In addition, the commissioner shall establish and maintain a register of all of the commissioner's orders and decisions, which shall be open and readily available for public inspection.

§ ‑12 Commissioner's investigative authorities. In all investigations made by the commissioner, and in all proceedings before the commissioner, the commissioner shall have the same powers respecting administering of oaths, compelling the attendance of witnesses and the production of documentary evidence, examining witnesses, and punishing for contempt, as are possessed by circuit courts. In case of disobedience by any person to any order of the commissioner, or any subpoena issued by the commissioner, or of the refusal of any witness to testify to any matter regarding which the witness may be questioned lawfully, any circuit court, on application by the commissioner, shall compel obedience as in case of disobedience of the requirements of a subpoena issued from a circuit court or a refusal to testify therein. No person shall be excused from testifying or from producing any book, waybill, document, paper, electronic record, or account in any investigation or inquiry by a hearing before the commissioner when ordered to do so, upon the ground that the testimony or evidence, book, waybill, document, paper, electronic record, or account required of the person may tend to incriminate the person or subject the person to penalty or forfeiture; but no person shall be prosecuted for any crime, punished for any crime, or subjected to any criminal penalty or criminal forfeiture for or on account of any act, transaction, matter, or thing concerning a matter about which the person has testified under oath or produced documentary evidence pursuant to a subpoena. Nothing in this section shall be construed as in any manner giving to any telecommunications carrier, cable operator, PEG access organization, or any person, immunity of any kind. The fees and traveling expenses of witnesses, when mandated to appear, shall be the same as allowed witnesses in the circuit courts and shall be paid by the State out of any appropriation available for the expenses of the commissioner.

§ ‑13 Notices. (a) Whenever an investigation is undertaken and a hearing is scheduled by the commissioner, reasonable notice in writing of such fact and of the subject or subjects to be investigated shall be given to the telecommunications carrier, cable operator, PEG access organization, or the person concerned, and when based upon complaints made to the commissioner as prescribed section -9, a copy of the complaint, and a notice in writing of the date and place fixed by the commissioner for beginning the investigation, shall be served upon the telecommunications carrier, cable operator, PEG access organization, or the person concerned, or other respondent and the complainant not less than two weeks before the date designated for the hearing.

(b) Any notice provided pursuant to section ‑38(e), shall plainly state the rate, fare, charge, classification, schedule, rule, or practice proposed to be established, abandoned, modified, or departed from and the proposed effective date thereof and shall be given by filing the notice with the commissioner and keeping it open for public inspection.

(c) Any public hearing held pursuant to section ‑38(e), shall be a noticed public hearing or hearings on the island on which the telecommunications carrier is situated. Notice of the hearing, with the purpose thereof and the date, time, and place at which it will open, shall be given not less than once in each of three weeks statewide, the first notice being not less than twenty-one days before the public hearing and the last notice being not more than two days before the scheduled hearing. The applicant or applicants shall notify their consumers or patrons of the proposed change in rates and of the time and place of the public hearing not less than one week before the date set, the manner and the fact of notification to be reported to the commissioner before the date of hearing.

§ -14 Right to be represented by counsel. At any investigation by or proceeding before the commissioner, the telecommunications carrier, cable operator, PEG access organization, or the person concerned, or other respondent or party and any complainant or permitted intervenor shall have the right to be present and represented by counsel, to present any evidence desired, and to cross-examine any witness who may be called.

§ ‑15 Commissioner may institute proceedings to enforce chapter. (a) If the commissioner is of the opinion that any telecommunications carrier, cable operator, PEG access organization, or any person is violating or neglecting to comply with any provision of this chapter or of any rule, regulation, order, or other requirement of the commissioner, or of any provisions of its certificate of public convenience and necessity, franchise, charter, contract, or articles of association, if any, or that changes, additions, extensions, or repairs are desirable in its plant or service to meet the reasonable convenience or necessity of the public, or to ensure greater safety or security, or that any rates, fares, classifications, charges, or rules are unreasonable or unreasonably discriminatory, or that in any way it is doing what it ought not to do, or not doing what it ought to do, the commissioner shall in writing inform the telecommunications carrier, cable operator, PEG access organization, or the person and may institute proceedings before it as may be necessary to require the telecommunications carrier, cable operator, PEG access organization, or the person to correct any deficiency. In that event, the commissioner may by order direct the consumer advocate to appear in the proceeding, to carry out the purposes of this section. The commissioner may examine into any of the matters referred to in section ‑9, notwithstanding that the same may be within the jurisdiction of any court or other body; provided that this section shall not be construed as in any manner limiting or otherwise affecting the jurisdiction of any court or other body. The commissioner may also revoke or amend any provision of a certificate of public convenience and necessity, franchise, charter, or articles of association, if any, pursuant to section ‑31 or ‑68.

(b) In addition to any other available remedy, the commissioner or its enforcement officer may issue citations to any person acting in the capacity of or engaging in the business of a telecommunications carrier or cable operator within the State, without having a certificate of public convenience and necessity, franchise, or other authority previously obtained under and in compliance with this chapter or the rules adopted thereunder. Citations issued and persons cited pursuant to this subsection shall be subject to the following:

(1) The citation may contain an order of abatement and an assessment of civil penalties as provided in section ‑23. All penalties collected under this subsection shall be deposited in the treasury of the State. Service of a citation issued under this subsection shall be made by personal service whenever possible, or by certified mail, restricted delivery, sent to the last known business or residence address of the person cited;

(2) Any person served with a citation under this subsection may submit a written request to the commissioner for a hearing, within twenty days from the receipt of the citation, with respect to the violations alleged, the scope of the order of abatement, and the amount of civil penalties assessed. If the person cited under this subsection timely notifies the commissioner of the request for a hearing, the commissioner shall afford an opportunity for a hearing under chapter 91. The hearing shall be conducted by the commissioner or the commissioner may designate a hearings officer to hold the hearing;

(3) If the person cited under this subsection does not submit a written request to the commissioner for a hearing within twenty days from the receipt of the citation, the citation shall be deemed a final order of the commissioner. The commissioner may apply to the appropriate court for a judgment to enforce the provisions of any final order, issued by the commissioner or designated hearings officer pursuant to this subsection, including the provisions for abatement and civil penalties imposed. In any proceeding to enforce the provisions of the final order of the commissioner or designated hearings officer, the commissioner need only show that the notice was given, that a hearing was held or the time granted for requesting the hearing has run without a request, and a certified copy of the final order of the commissioner or designated hearings officer; and

(4) If any party is aggrieved by the decision of the commissioner or the designated hearings officer, the party may appeal to the intermediate appellate court, in the manner provided for in chapter 602; provided that the operation of an abatement order shall not be stayed on appeal unless specifically ordered by the intermediate appellate court after applying the stay criteria enumerated in section 91-14(c). The sanctions and disposition authorized under this subsection shall be separate and in addition to all other remedies either civil or criminal provided in any other applicable statutory provision. The commissioner may adopt rules under chapter 91 as may be necessary to fully effectuate this subsection.

§ ‑16 Appeals. An appeal from an order of the commissioner under this chapter shall lie, in the manner provided for in chapter 602. Only a person aggrieved in a contested case proceeding provided for in this chapter may appeal from a final order, or a preliminary order if it is of the nature defined by section 91-14(a). The commissioner may elect to be a party to all matters, from which an order of the commissioner is appealed or any action in any court of law seeking a mandamus, or injunctive or other relief to compel compliance with this chapter, or any rule or order adopted thereunder, or to restrain or otherwise prevent or prohibit any illegal or unauthorized conduct in connection therewith, and file appropriate responsive briefs or pleadings. If there is no adverse party to the appeal, the commissioner shall be a party and shall file responsive briefs or pleadings in defending all orders. The appearance of the commissioner as a party in judicial proceedings in no way limits the participation of persons otherwise qualified to be parties on appeal. The appeal shall not of itself stay the operation of the order appealed from, but the appellate court may stay the order after a hearing upon a motion therefor and may impose conditions it deems proper, including but not limited to requiring a bond, requiring that accounts be kept, or requiring that other measures be taken as ordered to secure restitution of the excess charges, if any, made during the pendency of the appeal, in case the order appealed from is sustained, reversed, or modified in whole or in part.

§ ‑17 Alternative dispute resolution. The commissioner may require the parties in any matter before the commissioner to participate in nonbinding arbitration, mediation, or other alternative dispute resolution process prior to the hearing.

§ ‑18 Perjury. Any person who wilfully and knowingly makes under oath any false statement in connection with any investigation by or proceeding before the commissioner shall be guilty of perjury and, upon conviction, shall be subject to the penalty prescribed by law for the offense.

§ ‑19 Telecommunications carriers, cable operators, and PEG access organizations, to furnish information. Every telecommunications carrier, cable operator, PEG access organization, or other person subject to investigation by the commissioner, shall at all times, upon request, furnish to the commissioner all information that the commissioner may require respecting any of the matters concerning which the commissioner is given power to investigate, and shall permit the examination of its books, records, contracts, maps, and other documents by the commissioner or any person authorized by the commissioner in writing to make the examination, and shall furnish the commissioner with a complete inventory of property under its control or management in the form as the commissioner may direct.

§ ‑20 Commissioner special fund. (a) There is established in the state treasury a commissioner special fund to be administered by the commissioner. The proceeds of the fund shall be used by the commissioner and the division of consumer advocacy of the department for all expenses incurred in the administration of this chapter, including, without limitation, the operation of programs developed by the commissioner to develop and construct, or encourage the construction of, broadband infrastructure, make broadband capable services available to low income and disadvantaged persons, or otherwise promote universal availability of communications services. The expenditures of the commissioner shall be in accordance with legislative appropriations. On a quarterly basis an amount not to exceed thirty per cent of the proceeds remaining in the fund shall be allocated to the division of consumer advocacy and deposited in the compliance resolution fund established pursuant to section 26-9(o).

(b) All moneys appropriated to, received, and collected by the commissioner that are not otherwise pledged, obligated, or required by law to be placed in any other special fund or expended for any other purpose shall be deposited into the commissioner special fund including, but not limited to, all moneys received and collected by the commissioner pursuant to sections ‑23, ‑51, ‑73, ‑75, and 92-21.

(c) The commissioner shall submit a report to the legislature detailing all funds received and all moneys disbursed out of the fund prior to the convening of each regular session.

(d) The director may transfer any unexpended portion of the franchise fees previously collected to the commissioner by depositing those franchise fees into the commissioner special fund.

§ ‑21 Consumer advocate. As the director serves as the consumer advocate to the public utilities commission pursuant to sections 269-51 through 269-55, the commissioner shall recognize the director as the consumer advocate in hearings and proceedings before the commissioner.

§ -22 Communications advisory committee. (a) There is established the communications advisory committee. The committee shall consist of members appointed by the governor as provided in section 26-34.

(b) The following shall each provide a list of names for the governor's consideration:

(1) The president of the senate;

(2) The speaker of the house of representatives;

(3) ;

(4) ; and

(5) .

The governor shall select one name from each of the lists for appointment to the committee.

(c) The committee shall meet when called by the commissioner and may meet at any other times that the committee deems appropriate; provided that the committee shall meet at least on a quarterly basis.

(d) The committee shall advise the commissioner, telecommunications carriers, and cable operators on matters within the jurisdiction of this chapter at the request of the commissioner or any telecommunications carrier or cable operator. The committee may also advise the commissioner and telecommunications carriers and cable operators on the committee's own initiative.

(e) The members of the committee shall serve without pay but shall be entitled to reimbursement for necessary expenses, including travel expenses, while attending meetings and while in discharge of their duties.

§ ‑23 Penalties. (a) Any telecommunications carrier, cable operator, or PEG access organization violating, neglecting, or failing in any particular way to conform to or comply with this chapter or any lawful order of the commissioner, including, but not limited to the grounds specified in section ‑68 for cable operators and PEG access organizations, shall be subject to a civil penalty not to exceed $25,000 for each day the violation, neglect, or failure continues, to be assessed by the commissioner after a hearing in accordance with chapter 91. The commissioner may order the telecommunications carrier, cable operator, or PEG access organization to cease carrying on its business while the violation, neglect, or failure continues.

(b) Notwithstanding subsection (a), any person acting in the capacity of or engaging in the business of a telecommunications carrier or a cable operator in the State without having a certificate of public convenience and necessity, franchise, or other authority previously obtained under and in compliance with this chapter and the rules adopted thereunder may be subject to a civil penalty not to exceed $5,000 for each offense, and, in the case of a continuing violation, $5,000 for each day that uncertified activity continues.

(c) Upon written application filed within fifteen days after service of an order imposing a civil penalty pursuant to this section, the commissioner may remit or mitigate the penalty upon terms as it deems proper.

(d) If any civil penalty imposed pursuant to this section is not paid within the period as the commissioner may direct, the attorney general shall institute a civil action for recovery of the same in circuit court.

(e) Any penalty assessed under this section shall be in addition to any other costs, expenses, or payments for which the telecommunications carrier, cable operator, or PEG access organization is responsible under this chapter.

PART II. TELECOMMUNICATIONS

§ ‑31 Certificates of public convenience and necessity. (a) No telecommunications carrier, as defined in section ‑1, shall commence its business without first having obtained from the commissioner a certificate of public convenience and necessity. Applications for certificates shall be made in writing to the commissioner and shall comply with the requirements prescribed in the commissioner's rules. The application for a certificate of public convenience and necessity shall include the type of service to be performed, the geographical scope of the operation, the type of equipment to be employed in the service, the names of competing telecommunications carriers for the proposed service, a statement of the applicant's financial ability to render the proposed service, a current financial statement of the applicant, and the rates or charges proposed to be charged, including the rules governing the proposed service.

(b) A certificate shall be issued to any qualified applicant, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able to properly perform the proposed services and to conform to the terms, conditions, and rules adopted by the commissioner, and that the proposed service is, or will be, required by the present or future public convenience and necessity; otherwise the application shall be denied. Any certificate issued shall specify the service to be rendered and there shall be attached to the exercise of the privileges granted by the certificate at the time of issuance and from time to time thereafter, reasonable conditions and limitations as a public convenience and necessity may require. The reasonableness of the rates, charges, and tariff rules proposed by the applicant shall be determined by the commissioner during the same proceeding examining the present and future conveniences and needs of the public and qualifications of the applicant, in accordance with the standards set forth in section ‑38.

(c) No telecommunications carrier that, as of July 1, 2009, holds a valid certificate of public convenience and necessity, franchise, or charter enacted or granted by the legislative or executive authority of the State or its predecessor governments, or has a bona fide operation as a telecommunications carrier recognized by the public utilities commission, shall be required to obtain, as a result of the enactment of this Act, a new certificate of public convenience and necessity under this section.

(d) Any certificate, upon application of the holder and at the discretion of the commissioner, may be amended, suspended, or revoked, in whole or in part. The commissioner after notice and hearing may suspend, amend, or revoke any certificate in part or in whole, if the holder is found to be in wilful violation of any of the provisions of this chapter or with any lawful order or rule of the commissioner adopted thereunder, or with any term, condition, or limitation of the certificate.

§ ‑32 Location of records. A telecommunications carrier shall keep and maintain records, books, papers, accounts, and other documents as the commissioner may determine are necessary to effectively regulate the telecommunications carrier, that can be made immediately accessible when requested by the commissioner; provided that the original copies are made available when requested by the commissioner.

§ ‑33 Annual financial reports. Each annual financial report required to be filed with the commissioner by telecommunications carriers shall include a certification that the report conforms with the applicable uniform system of accounts adopted by the commissioner. The commissioner shall adopt a uniform system of accounts for this purpose.

§ ‑34 Telecommunications providers and services. (a) Notwithstanding any provision of this chapter to the contrary, the commissioner, upon the commissioner's own motion or upon the application of any person, and upon notice and hearing, may exempt a telecommunications carrier or a telecommunications service from any or all of the provisions of this chapter, except the requirements of section ‑36, upon a determination that the exemption is in the public interest. In determining whether an exemption is in the public interest, the commissioner shall consider whether the exemption promotes state policies in telecommunications, the development, maintenance, and operation of effective and economically efficient telecommunications services, and the furnishing of telecommunications services at just and reasonable rates and in a fair manner in view of the needs of the various customer segments of the telecommunications industry. Among the specific factors the commissioner may consider are:

(1) The responsiveness of the exemption to changes in the structure and technology of the State's telecommunications industry;

(2) The benefits accruing to the customers and users of the exempt telecommunications carrier or service;

(3) The impact of the exemption on the quality, efficiency, and availability of telecommunications services;

(4) The impact of the exemption on the maintenance of fair, just, and reasonable rates for telecommunications services;

(5) The likelihood of prejudice or disadvantage to ratepayers of basic local exchange service resulting from the exemption;

(6) The effect of the exemption on the preservation and promotion of affordable, universal, basic telecommunications services as those services are determined by the commissioner;

(7) The resulting subsidization, if any, of the exempt telecommunications service or provider by nonexempt services;

(8) The impact of the exemption on the availability of diversity in the supply of telecommunications services throughout the State of Hawaii;

(9) The improvements in the regulatory system to be gained from the exemption, including the reduction in regulatory delays and costs;

(10) The impact of the exemption on promoting innovations in telecommunications services;

(11) The opportunity provided by the exemption for telecommunications carriers to respond to competition;

(12) The potential for the exercise of substantial market power by the exempt provider or by a provider of the exempt telecommunications service; and

(13) The impact of the exemption on the competitive availability and affordability of broadband and other advanced services to consumers.

(b) The commissioner shall expedite, where practicable, the regulatory process with respect to exemptions and shall adopt guidelines under which each provider of an exempted service shall be subject to similar terms and conditions.

(c) The commissioner may condition or limit any exemption as the commissioner deems necessary in the public interest. The commissioner may provide a trial period for any exemption and may terminate the exemption or continue it for a period and under conditions and limitations as the commissioner deems appropriate.

(d) The commissioner may require a telecommunications provider to apply for a certificate of public convenience and necessity pursuant to section ‑31; provided that the commissioner may waive any application requirement whenever it deems the waiver to be in furtherance of the purposes of this section. The exemptions under this section may be granted in a proceeding for certification or in a separate proceeding.

(e) The commissioner may waive other regulatory requirements under this chapter applicable to telecommunications carriers when it determines that competition will serve the same purpose as public interest regulation.

(f) If any provider of an exempt telecommunications service or any exempt telecommunications carrier elects to terminate its service, it shall provide notice of this to its customers, the commissioner, and every telecommunications carrier providing basic local exchange service in this State. The notice shall be in writing and given not less than six months before the intended termination date. Upon termination of service by a provider of an exempt service or by an exempt provider, the appropriate telecommunications carrier providing basic local exchange service shall ensure that all customers affected by the termination receive basic local exchange service. The commissioner, upon notice and hearing or by rule, shall determine the party or parties who shall bear the cost, if any, of access to the basic local exchange service by the customers of the terminated exempt service.

(g) Upon the petition of any person or upon the commissioner's own motion, the commissioner may rescind any exemption or waiver granted under this section if, after notice and hearing, the commissioner finds that the conditions prompting the granting of the exemption or waiver no longer apply, or that the exemption or waiver is no longer in the public interest, or that the telecommunications carrier has failed to comply with one or more of the conditions of the exemption or applicable statutory or regulatory requirements.

(h) For the purposes of this section, the commissioner, upon determination that any area of the State has less than adequate telecommunications service, shall require the existing telecommunications carrier to show cause as to why the commissioner should not authorize an alternative telecommunications carrier for that area under the terms and conditions of this section.

§ ‑35 Application of this chapter. This chapter shall not apply to commerce with foreign nations, or commerce with the several states of the United States, except insofar as the same may be permitted under the Constitution and laws of the United States; nor shall it apply to telecommunications carriers owned and operated by the State.

§ ‑36 Obligations of telecommunications carriers. In accordance with conditions and guidelines established by the commissioner to facilitate the introduction of competition into the State's telecommunications marketplace, each telecommunications carrier, upon bona fide request, shall provide services or information services, on reasonable terms and conditions, to an entity seeking to provide intrastate telecommunications, including:

(1) Interconnection to the telecommunications carrier's telecommunications facilities at any technically feasible and economically reasonable point within the telecommunications carrier's network so that the networks are fully interoperable;

(2) The current interstate tariff used as the access rate until such time that the commissioner may adopt a new intrastate local service interconnection tariff pursuant to section ‑37;

(3) Nondiscriminatory and equal access to any telecommunications carrier's telecommunications facilities, functions, and the information necessary to the transmission and routing of any telecommunications service and the interoperability of both carriers' networks;

(4) Nondiscriminatory access among all telecommunications carriers, where technically feasible and economically reasonable, and where safety or the provision of existing electrical service is not at risk, to the poles, ducts, conduits, and rights-of-way owned or controlled by the telecommunications carrier, or the commissioner shall authorize access to electric utilities' poles as provided by the joint pole agreement, tariffs, rules, orders, or Federal Communications Commission rules and regulations;

(5) Nondiscriminatory access to the network functions of the telecommunications carrier's telecommunications network, which shall be offered on an unbundled, competitively neutral, and cost-based basis;

(6) Telecommunications services and network functions without unreasonable restrictions on the resale or sharing of those services and functions; and

(7) Nondiscriminatory access of customers to the telecommunications carrier of their choice without the need to dial additional digits or access codes, where technically feasible. The commissioner shall determine the equitable distribution of costs among the authorized telecommunications carriers that will use such access and shall establish rules to ensure access.

Where possible, telecommunications carriers shall enter into negotiations to agree on the provision of services or information services without requiring intervention by the commissioner; provided that any agreement shall be subject to review by the commissioner to ensure compliance with the requirements of this section.

§ ‑37 Compensation agreements. The commissioner shall ensure that telecommunications carriers are compensated on a fair basis for termination of telecommunications services on each other's networks, taking into account, among other things, reasonable and necessary costs to each telecommunications carrier of providing the services in question. Telecommunications carriers may negotiate compensation arrangements, which may include "bill and keep", mutual and equal compensation, or any other reasonable division of revenues pending tariff access rates to be set by the commissioner. Upon failure of the negotiations, the commissioner shall determine the proper methodology and amount of compensation.

§ ‑38 Regulation of telecommunications carrier rates; ratemaking procedures. (a) All rates, fares, charges, classifications, schedules, rules, and practices made, charged, or observed by any telecommunications carrier or by two or more telecommunications carriers jointly shall be just and reasonable and shall be filed with the commissioner. The rates, fares, classifications, charges, and rules of every telecommunications carrier shall be published by the telecommunications carrier in a manner as the commissioner may require, and copies shall be furnished to any person on request.

(b) The commissioner shall promptly examine rate regulation alternatives including rate-of-return ratemaking and price cap ratemaking, and may issue an order imposing alternative rate regulation procedures. The examination shall include pursuing incentive regulation with local exchange carriers, one goal of which shall be to increase broadband competitive availability and affordability to consumers in the State.

(c) The commissioner may waive rate regulation and allow telecommunications carriers to have pricing flexibility for services that the commissioner determines to be effectively competitive; provided that the rates for:

(1) Basic telephone service and for services that are not effectively competitive are regulated and remain just, reasonable, and nondiscriminatory; and

(2) Universal service is preserved and advanced.

(d) Unless and until the commissioner waives this requirement, no rate, fare, charge, classification, schedule, rule, or practice, other than one established pursuant to an automatic rate adjustment clause previously approved by the commissioner or the public utilities commission, shall be established, abandoned, modified, or departed from by any telecommunications carrier, except after thirty days' notice to the commissioner as prescribed in section -13(b), and prior approval by the commissioner for any increases in rates, fares, or charges.

The commissioner, in the commissioner's discretion and for good cause shown, may allow any rate, fare, charge, classification, schedule, rule, or practice to be established, abandoned, modified, or departed from upon notice less than that provided for in section ‑13(b). Unless and until the commissioner waives this requirement, a contested case hearing shall be held in connection with any increase in rates, and the hearing shall be preceded by a public hearing as prescribed in section ‑13(c), at which the consumers or patrons of the telecommunications carrier may present testimony to the commissioner concerning the increase. The commissioner, upon notice to the telecommunications carrier, may:

(1) Suspend the operation of all or any part of the proposed rate, fare, charge, classification, schedule, rule, or practice or any proposed abandonment or modification thereof or departure therefrom;

(2) After a hearing, by order:

(A) Regulate, fix, and change all such rates, fares, charges, classifications, schedules, rules, and practices so that the same shall be just and reasonable;

(B) Prohibit rebates and unreasonable discrimination between localities or between users or consumers under substantially similar conditions;

(C) Regulate the manner in which the property of every telecommunications carrier is operated with reference to the safety and accommodation of the public;

(D) Prescribe its form and method of keeping accounts, books, and records, and its accounting system;

(E) Regulate the return upon its telecommunications carrier property;

(F) Regulate the incurring of indebtedness relating to its telecommunications carrier business; and

(G) Regulate its financial transactions; and

(3) Do all things that are necessary and in the exercise of the commissioner's power and jurisdiction, all of which as so ordered, regulated, fixed, and changed are just and reasonable, and provide a fair return on the property of the telecommunications carrier actually used or useful for telecommunications carrier purposes.

(e) The commissioner may in the commissioner's discretion, after public hearing and upon showing by a telecommunications carrier of probable entitlement and financial need, authorize temporary increases in rates, fares, and charges; provided that the commissioner shall require by order the telecommunications carrier to return, in the form of an adjustment to rates, fares, or charges to be billed in the future, any amounts with interest, at a rate equal to the rate of return on the telecommunications carrier's rate base found to be reasonable by the commissioner, received by reason of continued operation that are in excess of the rates, fares, or charges finally determined to be just and reasonable by the commissioner. Interest on any excess shall commence as of the date that any rate, fare, or charge goes into effect that results in the excess and shall continue to accrue on the balance of the excess until returned.

(f) In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the State, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the commissioner may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among the organizations, trades, or businesses, if it determines that the distribution, apportionment, or allocation is necessary to adequately reflect the income of any such organizations, trades, or businesses to carry out the regulatory duties imposed by this section.

(g) Notwithstanding any law to the contrary, for telecommunications carrier having annual gross revenues of less than $2,000,000, the commissioner may make and amend its rules and procedures to provide the commissioner with sufficient facts necessary to determine the reasonableness of the proposed rates without unduly burdening the telecommunications carrier company and its customers.

§ ‑39 Cross-subsidies. (a) The commissioner shall ensure that noncompetitive services shall not cross-subsidize competitive services. Cross-subsidization shall be deemed to have occurred:

(1) If any competitive service is priced below the total service long-run incremental cost of providing the service as determined by the commissioner in subsection (b); or

(2) If competitive services, taken as a whole, fail to cover their direct and allocated joint and common costs as determined by the commissioner.

(b) The commissioner shall determine the methodology and frequency with which telecommunications carriers calculate total service long-run incremental cost and fully allocated joint and common costs. The total service long-run incremental cost of a service shall include an imputation of an amount equal to the contribution that the telecommunications carrier receives from noncompetitive inputs used by alternative providers in providing the same or equivalent service.

§ ‑40 Separate affiliate audits. The commissioner shall receive the results of joint federal and state audits required for companies to operate separate affiliates, and obtain and pay for a joint federal and state audit every two years from an independent auditor pursuant to title 47 United States Code section 272(d). The commissioner shall make the results of joint federal and state audits available for public inspection.

§ ‑41 Unfair or deceptive acts or practices. The commissioner shall adopt rules prohibiting unfair or deceptive acts or practices by telecommunications carriers and telecommunications service providers including resellers and aggregators of telecommunications services. Unfair or deceptive acts or practices may include unauthorized changes in subscriber carrier selections.

§ ‑42 Lifeline telephone rates. (a) The commissioner shall implement a program to achieve lifeline telephone rates for residential telephone users. The commissioner may achieve lifeline telephone rates by using funds collected pursuant to section ‑51 and deposited in the commissioner special fund pursuant to section ‑20. In conjunction with such funds, or alternatively, the commissioner may seek appropriations of funds from the State.

(b) For the purposes of this section, "lifeline telephone rate" means a discounted rate for residential telephone users identified as elders with limited income and the handicapped with limited income as designated by the commissioner.

(c) The commissioner shall require every telecommunications carrier providing local telephone service to file a schedule of rates and charges providing a rate for lifeline telephone subscribers.

(d) Nothing in this section shall preclude the commissioner from changing any rate established pursuant to subsection (a) either specifically or pursuant to any general restructuring of all telephone rates, charges, and classifications.

§ ‑43 Carriers of last resort. (a) The commissioner may define and designate local exchange service areas where the commissioner has determined that a single provider will be the most appropriate way to ensure service for these areas.

(b) The commissioner shall determine the level of service that is appropriate for each designated local exchange service area and shall invite telecommunications providers to bid for a level of service that is appropriate. The successful bidder shall be designated as the carrier of last resort for the designated local exchange service area for a period of time and upon conditions set by the commissioner. In determining the successful bidder, the commissioner shall take into consideration the level of service to be provided, the investment commitment, and the length of the agreement, in addition to the other qualifications of the bidder.

(c) The commissioner shall adopt rules pursuant to chapter 91 to carry out this section or adopt the rules provided in chapter 6-81 of the Hawaii Administrative Rules, which were in effect on July 1, 2009.

§ ‑44 Telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities. (a) The commissioner shall implement intrastate telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities.

(b) The commissioner shall investigate the availability of experienced providers of quality telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities. The provision of these telecommunications relay services to be rendered on or after July 1, 1992, shall be awarded by the commissioner to the provider or providers the commissioner determines to be best qualified to provide these services. In reviewing the qualifications of the provider or providers, the commissioner shall consider the factors of cost, quality of services, and experience, and other factors as the commissioner deems appropriate.

(c) If the commissioner determines that the telecommunications relay service can be provided in a cost-effective manner by a service provider or service providers, the commissioner may require every intrastate telecommunications carrier to contract with the provider or providers for the provision of the telecommunications relay service under the terms established by the commissioner.

(d) The commissioner may establish a surcharge to collect customer contributions for telecommunications relay services required under this section.

(e) The commissioner may adopt rules to establish a mechanism to recover the costs of administering and providing telecommunications relay services required under this section.

(f) The commissioner shall require every intrastate telecommunications carrier to file a schedule of rates and charges and every provider of telecommunications relay service to maintain a separate accounting for the costs of providing telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities.

(g) Nothing in this section shall preclude the commissioner from changing any rate established pursuant to this section either specifically or pursuant to any general restructuring of all telephone rates, charges, and classifications.

(h) As used in this section:

"Telecommunications relay services" means telephone transmission services that provide an individual who has a hearing or speech disability, the ability to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing or speech disability to communicate using wire or radio voice communication services. "Telecommunications relay services" includes services that enable two-way communication using text telephones or other non‑voice terminal devices, speech-to-speech services, video relay services, and non-English relay services.

§ ‑45 Telecommunications number portability. The commissioner shall ensure that telecommunications number portability within an exchange is available, upon request, as soon as technically feasible and economically reasonable. An impartial entity shall administer telecommunications numbering and make the numbers available on an equitable basis.

§ ‑46 Emergency telephone service; capital costs; ratemaking. (a) A telecommunications carrier providing local exchange telecommunications services may recover the capital cost and associated operating expenses of providing a statewide enhanced 911 emergency telephone service in the public switched telephone network, through a telephone line surcharge.

(b) The commissioner shall require every telecommunications carrier providing statewide enhanced 911 emergency telephone service to maintain a separate accounting of the costs of providing an enhanced 911 emergency service and the revenues received from related surcharges. The commissioner shall further require that every telecommunications carrier imposing a surcharge shall identify on all customer billing statements the separate line item for enhanced 911 emergency service.

(c) This section shall not preclude the commissioner from changing any rate, established pursuant to this section, either specifically or pursuant to any general restructuring of all telephone rates, charges, and classifications.

§ ‑47 Issuance of securities. A telecommunications carrier corporation may, on securing the prior approval of the commissioner, and not otherwise, issue stocks and stock certificates, bonds, notes, and other evidences of indebtedness, payable at periods of more than twelve months after the date thereof, for the following purposes and no other, namely:

(1) For the acquisition of property;

(2) For the construction, completion, extension, or improvement of or addition to its facilities or service;

(3) For the discharge or lawful refunding of its obligations;

(4) For the reimbursement of moneys actually expended from income or from any other moneys in its treasury not secured by or obtained from the issue of its stocks or stock certificates, or bonds, notes, or other evidences of indebtedness; and

(5) For any of the aforesaid purposes except maintenance of service, replacements, and substitutions not constituting capital expenditure in cases where the corporation has kept its accounts for such expenditures in such manner as to enable the commissioner to ascertain the amount of moneys so expended and the purposes for which the expenditures were made, and the sources of the funds in its treasury applied to the expenditures.

As used in this section, "property" and "facilities", mean property and facilities used in all operations of a telecommunications carrier corporation whether or not included in its operations or rate base. A telecommunications carrier corporation may not issue securities to acquire property or to construct, complete, extend, improve, or add to its facilities or service if the commissioner determines that the proposed purpose will have a materially adverse effect on its telecommunications carrier operations.

All stocks and every stock certificate, bond, note, or other evidence of indebtedness of a telecommunications carrier corporation not payable within twelve months, issued without an order of the commissioner authorizing the same, then in effect, shall be void.

§ ‑48 Issuance of voting stock; restrictions. (a) For the purposes of this section:

"Foreign corporation" means a foreign corporation as defined in section 235-1 or a corporation in which a majority of the voting stock is held by a single foreign corporation as defined in section 235-1.

"Nonresident alien" means a person not a citizen of the United States who is not defined as a resident alien by the United States Citizenship and Immigration Services.

(b) No more than twenty-five per cent of the issued and outstanding voting stock of a corporation that is organized under the laws of the State and that owns, controls, operates, or manages any plant or equipment, or any part thereof, as a telecommunications carrier within the definition set forth in section ‑1 shall be held, whether directly or indirectly, by any single foreign corporation or any single nonresident alien, or held by any person, unless prior written approval is obtained from the commissioner, or unless a transaction is exempt. An exempt transaction is:

(1) Any purchase or sale by an underwriter; or

(2) A transaction to acquire shares of a corporation with less than one hundred shareholders and less than $1,000,000 in assets.

Every assignment, transfer, contract, or agreement for assignment or transfer of any shares in violation of this section shall be void and of no effect; and no such transfer shall be made on the books of the corporation. Nothing in this section shall be construed to make illegal the holding of stock lawfully held, directly or indirectly, prior to June 4, 1977.

§ ‑49 Acquisition of stock of another telecommunications carrier. No person or entity shall purchase or acquire, take or hold, any part of the capital stock of any telecommunications carrier corporation, organized or existing under or by virtue of the laws of the State, without having been first authorized to do so by the order of the commissioner. Every assignment, transfer, contract, or agreement for assignment or transfer of any stock by or through any person or corporation to any corporation or otherwise in violation of this section shall be void and of no effect; and no such transfer shall be made on the books of any telecommunications carrier. Nothing in this section shall be construed to make illegal the holding of stock lawfully acquired before July 1, 1933.

§ ‑50 Merger and consolidation of telecommunications carriers. No telecommunications carrier corporation shall sell, lease, assign, mortgage, or otherwise dispose of or encumber the whole or any part of its road, line, plant, system, or other property necessary or useful in the performance of its duties to the public, or any franchise or permit, or any right thereunder, nor by any means, directly or indirectly, merge or consolidate with any other person or entity without first having secured from the commissioner an order authorizing it so to do. Every sale, lease, assignment, mortgage, disposition, encumbrance, merger, or consolidation, made other than in accordance with the order of the commissioner shall be void.

§ ‑51 Finances; regulatory fee. (a) There shall be paid to the commissioner in the months of July and December of each year, by each telecommunications carrier subject to this chapter, a fee set by the commissioner not to exceed three-tenths of one per cent of the gross income from the telecommunications carrier's business during the preceding year, or the sum of $30, whichever is greater. The commissioner shall set the fee amount based on its projected budget for the year to administer and enforce this chapter. This fee shall be deposited with the director of finance to the credit of the commissioner special fund created pursuant to section ‑20.

(b) Each telecommunications carrier paying a fee under subsection (a) may impose a surcharge to recover the amount paid above one-eighth of one per cent of gross income. The surcharge imposed shall not be subject to the notice, hearing, and approval requirements of this chapter; provided that the surcharge may be imposed by the telecommunications carrier only after thirty days' notice to the commissioner.

(c) The commissioner, in the commissioner's discretion, may impose additional fees on telecommunications carriers, including to facilitate deployment of broadband communications services in the State, and the fees shall be deposited with the director of finance to the credit of the commissioner special fund created pursuant to section ‑20.

§ ‑52 Injury to carrier property. Any person who injures or destroys, through want of proper care, any necessary or useful facility, equipment, or property of any telecommunications carrier shall be liable to the telecommunications carrier for all damages sustained thereby. The measure of damages to the facility, equipment, or property injured or destroyed shall be the cost to repair or replace the property injured or destroyed including direct and allocated costs for labor, materials, supervision, supplies, tools, taxes, transportation, administrative and general expense, and other indirect or overhead expenses, less credit, if any, for salvage. The specifying of the measure of damages for the facility, equipment, or property shall not preclude the recovery of other damages occasioned thereby as may be authorized by law.

§ ‑53 One call center; advance warning to excavators. To finance the establishment and operation of the one call center, pursuant to chapter 269E, and the administrative costs of the commissioner, the commissioner shall direct telecommunications carriers to pay to the public utilities commission a fee in an amount and at a schedule determined by the public utilities commission.

§ ‑54 Local exchange intrastate services; fully competitive. (a) Notwithstanding any law to the contrary, the Hawaii broadband commissioner shall classify the State's local exchange intrastate services, under the commissioner's classifications of services related to costs, rates, and pricing, as fully competitive. In addition, with respect to all services except intrastate switched and special access with respect to wholesale customers, the telecommunications carrier shall not be required to obtain approval or provide any cost support or other information to establish or otherwise modify in any manner its rates, fares and charges or to bundle any service offerings into a single or combined price package; provided that with respect to basic residential service a telecommunications carrier may not charge any rate for a service above the rate for the service included in the telecommunications carrier's filed tariff.

(b) Notwithstanding subsection (a), all rates, fares, charges, and bundled service offerings shall be filed with the commissioner for informational purposes only. Nothing herein shall modify any requirements of a telecommunications carrier to:

(1) Provide lifeline telephone service;

(2) Comply with carrier of last resort obligations; or

(3) Comply with applicable service quality standards.

PART III. CABLE

§ ‑61 Issuance of cable franchises and regulation of cable operators by the commissioner. The commissioner shall be empowered to issue cable franchises and otherwise administer and enforce this part.

§ ‑62 Cable franchise required. (a) No person shall construct, operate, or acquire a cable system, or extend an existing cable system outside its designated service area, without first obtaining a cable franchise as provided in this part.

(b) No cable operator that, as of July 1, 2009, holds a franchise or charter enacted or granted by the legislative or executive authority of the State or its predecessor governments, or has a bona fide operation as a cable operator heretofore recognized by the department, shall be required to obtain, as a result of the enactment of this chapter, a new franchise under this section.

§ ‑63 Application or proposal for cable franchise; fee; certain requirements. (a) No cable franchise shall be issued except upon written application or proposal therefor to the commissioner, accompanied by a fee set by the commissioner.

(b) An application for issuance of a cable franchise shall be made in a form prescribed by the commissioner. The application shall set forth the facts as required by the commissioner to determine in accordance with section ‑65 whether a cable franchise should be issued, including facts as to:

(1) The citizenship and character of the applicant;

(2) The financial, technical, and other qualifications of the applicant;

(3) The principals and ultimate beneficial owners of the applicant;

(4) The public interest to be served by the requested issuance of a cable franchise; and

(5) Any other matters deemed appropriate and necessary by the commissioner including, but not limited to, the proposed plans and schedule of expenditures for or in support of the use of public, educational, and governmental access facilities, and the competitive availability and affordability of broadband and other advanced services to consumers.

(c) A proposal for issuance of a cable franchise shall be accepted for filing in accordance with section ‑64 only when made in response to the written request of the commissioner for the submission of proposals.

§ ‑64 Cable franchise application or proposal procedure; public hearing; notice. An application or proposal for a cable franchise shall be processed as follows:

(1) After the application or proposal and required fee are received by the commissioner and within a time frame established by rule, the commissioner shall notify the applicant in writing of the acceptance or non‑acceptance for filing of the application or proposal for issuance of a cable franchise required by this part;

(2) After the issuance of a notice of acceptance for filing and within a time frame established by rule, the commissioner shall hold a public hearing on the application or proposal to afford interested persons the opportunity to submit data, views, or arguments, orally or in writing. Notice thereof shall be given to the governing council and mayor of the county and to any local exchange carrier or other utility and cable company in the county in which the proposed service area is located. The commissioner shall also give public notice of the application and hearing at least once in each of two successive weeks in the county in which the proposed service area is located. The last notice shall be given at least fifteen days prior to the date of the hearing;

(3) After holding a public hearing, the commissioner shall approve the application or proposal in whole or in part, with or without conditions or modifications, or shall deny the application or proposal, with reasons for denial sent in writing to the applicant. If the commissioner does not take final action after the issuance of a notice of acceptance for filing and within a time frame established by rule, the application or proposal shall be deemed denied; and

(4) The time limit for final action may be extended, on the commissioner's approval of the applicant's request and justification in writing for an extension of time to the commissioner at least two weeks in advance of the requested effective date of the extension, or by mutual agreement.

§ ‑65 Issuance of cable franchise authority; criteria; content. (a) The commissioner is empowered to issue a cable franchise to construct or operate facilities for a cable system upon the terms and conditions provided in this part.

(b) The commissioner, after a public hearing as provided in this part, shall issue a cable franchise to the applicant when the commissioner is convinced that it is in the public interest to do so. In determining whether a cable franchise shall be issued, the commissioner shall take into consideration, among other things, the content of the application or proposal, the public need for the proposed service, the ability of the applicant to offer safe, adequate, and reliable service at a reasonable cost to the subscribers, the suitability of the applicant, the financial responsibility of the applicant, the technical and operational ability of the applicant to perform efficiently the service for which authority is requested, any objections arising from the public hearing, the communications advisory committee established by this chapter, or elsewhere, and any other matters as the commissioner deems appropriate in the circumstances.

(c) In determining the area that is to be serviced by the applicant, the commissioner shall take into account the geography and topography of the proposed service area, and the present, planned, and potential expansion in facilities or cable services of the applicant's proposed cable system and existing cable systems.

(d) In issuing a cable franchise under this part, the commissioner is not restricted to approving or disapproving the application or proposal but may issue it for only partial exercise of the privilege sought or may attach to the exercise of the right granted by the cable franchise terms, limitations, and conditions which the commissioner deems the public interest may require. The cable franchise shall be nonexclusive, shall include a description of the service area in which the cable system is to be constructed, extended, or operated and the approximate date on which the service is to commence and shall authorize the cable operator to provide service for a term of fifteen years or any other term that the commissioner determines to be appropriate.

§ ‑66 Requirement for adequate service; terms and conditions of service. (a) Every cable operator shall provide safe, adequate, and reliable service in accordance with applicable laws, rules, franchise requirements, and its filed schedule of terms and conditions of service.

(b) The commissioner shall require each cable operator to submit a schedule of all terms and conditions of service in the form and with the notice that the commissioner may prescribe.

(c) The commissioner shall ensure that the terms and conditions upon which cable service is provided are fair both to the public and to the cable operator, taking into account the geographic, topographic, and economic characteristics of the service area and the economics of providing cable service to subscribers in the service area.

§ ‑67 Cable system installation, construction, operation, removal; general provisions. (a) A cable franchise shall be construed to authorize the construction or operation of a cable system within the service area above, below, on, in, or along any highway or other public place and through easements that have been dedicated for compatible purposes.

(b) The technical specifications, general routes of the distribution system, and the schedule for construction of the cable system shall be subject to the commissioner's approval.

(c) In installing, operating, and maintaining facilities, the cable operator shall avoid all unnecessary damage and injury to any trees, structures, and improvements in and along the routes authorized by the commissioner.

(d) The cable operator shall indemnify and hold the State and the county harmless at all times from any and all claims for injury and damage to persons or property, both real and personal, caused by the installation, operation, or maintenance of its cable system, notwithstanding any negligence on the part of the State or county, or their employees or agents. Upon receipt of notice in writing from the State or county, the cable operator shall, at its own expense, defend any action or proceeding against the State or county in which it is claimed that personal injury or property damage was caused by activities of the cable operator in the installation, operation, or maintenance of its cable system.

(e) The cable operator shall install and provide basic cable television service at no cost to any school or institution of higher education within its service area as determined by the commissioner; provided that service is actually being delivered within a reasonable distance from the school or institution of higher education which may request service.

(f) The cable operator shall designate and activate three or more channels for public, educational, or governmental use. The commissioner may initiate, or a PEG access organization, educational institution, or government agency, may, at any time, request the commissioner to have the cable operator designate and activate additional channels; provided that the commissioner shall have the sole discretion to grant, deny, or modify the request based upon the best interest of the public, requester, cable operator, and the State.

The Hawaii broadband commissioner shall have the authority to designate and select PEG access organizations pursuant to administrative rules adopted in accordance with chapter 91. The commissioner shall consider input from the public and take into consideration the First Amendment rights of individuals who utilize PEG access services when promulgating those rules.

(g) Upon termination of the period of the cable franchise or permit or of any renewal thereof, by passage of time or otherwise, the cable operator shall remove its facilities from the highways and other public places in, on, over, under, or along which they are installed if so ordered by the commissioner and shall restore the areas to their original or other acceptable condition, or otherwise dispose of same. If removal is not completed within six months of the termination, any property not removed shall be deemed to have been abandoned and the cable operator shall be liable for the cost of its removal.

(h) The use of public highways within the meaning of section 264-1 and other public places shall be subject to:

(1) All applicable state statutes and all applicable rules and orders of the public utilities commission and the commissioner governing the construction, maintenance, and removal of overhead and underground facilities of public utilities;

(2) For county highways, all applicable public welfare rules adopted by the governing body of the county in which the county highways are situated;

(3) For state or federal-aid highways, all public welfare rules adopted by the director of transportation; and

(4) For the relocation of cable facilities, the provisions of section 264-33 concerning the allocation of expenses for the relocation of utility facilities.

(i) In the use of easements dedicated to compatible purposes, the cable operator shall ensure:

(1) That the safety, functioning, and appearance of the property and the convenience and safety of other persons are not adversely affected by the installation or construction of facilities necessary for a cable system;

(2) That the cost of the installation, construction, operation, or removal of facilities is borne by the cable operator or subscribers, or a combination of both; and

(3) That the owner of the property is justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of facilities by the cable operator.

(j) Contracts between the commissioner and PEG access organizations for PEG access services shall be exempt from the requirements of chapter 103D.

§ ‑68 Complaints; violations; revocation, alteration, or suspension of cable franchise. (a) Subscriber complaints regarding the operation of a cable system may be made orally or in writing to the commissioner. The commissioner shall resolve complaints informally when possible.

(b) Any cable franchise issued hereunder after hearing in accordance with chapter 91 may be revoked, altered, or suspended by the commissioner as the commissioner deems necessary on any of the following grounds:

(1) For making material false or misleading statements in, or for material omissions from, any application or proposal or other filing made with the commissioner;

(2) For failure to maintain signal quality under the standards prescribed by the commissioner;

(3) For any sale, lease, assignment, or other transfer of its cable franchise without consent of the commissioner;

(4) Except when commercially impracticable, for unreasonable delay in construction or operation or for unreasonable withholding of the extension of cable service to any person in a service area;

(5) For violation of the terms of its cable franchise;

(6) For failure to comply with this chapter or any rules or orders prescribed by the commissioner;

(7) For violation of its filed schedule of terms and conditions of service; and

(8) For engaging in any unfair or deceptive act or practice as prohibited by section 480-2.

§ ‑69 Renewal of cable franchise. Any cable franchise issued pursuant to this part may be renewed by the commissioner upon approval of a cable operator's application or proposal therefor. The form of the application or proposal shall be prescribed by the commissioner. The periods of renewal shall be not less than five nor more than twenty years each. The commissioner shall require of the applicant full disclosure, including the proposed plans and schedule of expenditures for or in support of the use of public, educational, or governmental access facilities and broadband facilities.

§ ‑70 Transfer of cable franchise. (a) No cable franchise, including the rights, privileges, and obligations thereof, may be assigned, sold, leased, encumbered, or otherwise transferred, voluntarily or involuntarily, directly or indirectly, including by transfer of control of any cable system, whether by change in ownership or otherwise, except upon written application to and approval by the commissioner. The form of the application shall be prescribed by the commissioner.

(b) Sections ‑64 and ‑65 shall apply to the transfer of cable franchises.

§ ‑71 Rate, filed with the commissioner; approval. (a) The commissioner shall require each cable operator to file a schedule of its rates of service on a form and with the notice that the commissioner may prescribe.

(b) To the extent permitted by federal law, the commissioner shall regulate rates to ensure that they are fair both to the public and to the cable operator.

§ ‑72 Reports. Each cable operator shall file with the commissioner reports of its financial, technical, and operational condition and its ownership. The reports shall be made in a form and on the time schedule prescribed by the commissioner and shall be kept on file open to the public.

§ ‑73 Annual fees. (a) Each cable operator shall pay an annual fee to be determined by the commissioner. The fees so collected under this section shall be deposited into the commissioner special fund established under section ‑20.

(b) The commissioner shall adjust the fees assessed under this section, as necessary from time to time, pursuant to rules adopted in accordance with chapter 91.

§ ‑74 Criminal and civil liability. Nothing in this chapter shall be deemed to affect the criminal and civil liability of cable programmers, cable operators, or public, educational, or governmental access organizations pursuant to the federal, state, or local laws regarding libel, slander, obscenity, incitement, invasions of privacy, false or misleading advertising, or other similar laws, except that no public, educational, or governmental access organization shall incur any liability arising from, based on, or related to any program not created by the public, educational, or governmental access organization, which is broadcast on any channel obtained under section ‑67, or under similar arrangements.

§ ‑75 Use of American Recovery and Reinvestment Act of 2009, federal funds from fiscal year 2009 and fiscal year 2010 appropriation measures, and other federal moneys. (a) The commissioner may apply for, and expend, federal moneys from the American Recovery and Reinvestment Act of 2009, federal funds from fiscal year 2009 and fiscal year 2010 appropriation measures, and other applicable federal acts.

(b) The commissioner may purchase broadband facilities, services, or equipment and may enter into contracts for broadband-related projects, through the commissioner special fund, using moneys from the American Recovery and Reinvestment Act of 2009, federal funds from fiscal year 2009 and fiscal year 2010 appropriation measures, and other applicable federal acts.

(c) The commissioner may establish a separate account within the commissioner special fund and assign to that account federal moneys appropriated under federal laws that authorize principal forgiveness, zero and negative interest loans, and grants, including without limitation the American Recovery and Reinvestment Act of 2009, federal funds from fiscal year 2009 and fiscal year 2010 appropriation measures, and other applicable federal acts. The commissioner may use those moneys and, in so doing, may include additional requirements and subsidization not applicable to the remainder of the commissioner special fund, including forgiveness of principal and zero and negative interest loans.

(d) Any moneys applied for or received by the department under the American Recovery and Reinvestment Act of 2009 or federal funds from fiscal year 2009 and fiscal year 2010 appropriation measures for uses related to the purpose of this chapter and not yet encumbered shall be transferred to the commissioner special fund upon its establishment.

(e) The commissioner shall certify that a project has been identified for expenditure of funds received pursuant to the American Recovery and Reinvestment Act of 2009 and is entitled to priority over other eligible projects on the basis of the overall public benefit associated with the project and financial needs, as well as a preference to those projects that can be started and completed expeditiously as stipulated under the American Recovery and Reinvestment Act of 2009.

(f) Contracts or purchases hereunder using moneys from the American Recovery and Reinvestment Act of 2009 or federal funds from fiscal year 2009 and fiscal year 2010 appropriation measures shall be exempt from chapter 103D.

(g) For the purposes of this section:

"American Recovery and Reinvestment Act of 2009" means

the federal law, P.L. 111-5, making appropriations for various purposes, including job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed, and state and local fiscal stabilization purposes.

§ ‑76 Broadband inventory maps. The Hawaii broadband commissioner shall designate the entity within the State to be responsible for developing and maintaining broadband inventory maps, as described in the American Recovery and Reinvestment Act of 2009 and the Broadband Data Improvement Act. If permitted by federal law, the commissioner may contract with service providers to develop the broadband inventory maps. Subject only to any limitations imposed by federal law, all providers of broadband infrastructure and services in Hawaii shall be required to furnish information requested by the broadband commissioner in support of broadband mapping, reporting, and data-driven policy support. Proprietary data on private infrastructure furnished by private providers shall be protected from disclosure under the Freedom of Information Act or Uniform Information Practices Act and shall be made available to the public only in a summarized form that appropriately protects the proprietary concerns of those private providers.

The Hawaii broadband commissioner shall have the authority to designate economic zones anywhere in the State at a location that may be identified as a strategic site to create facilities that will stimulate job growth."

SECTION 4. Section 26-9, Hawaii Revised Statutes, is amended by amending subsection (o) to read as follows:

"(o) Every person licensed under any chapter within the jurisdiction of the department of commerce and consumer affairs and every person licensed subject to chapter 485A or registered under chapter 467B shall pay upon issuance of a license, permit, certificate, or registration a fee and a subsequent annual fee to be determined by the director and adjusted from time to time to ensure that the proceeds, together with all other fines, income, and penalties collected under this section, do not surpass the annual operating costs of conducting compliance resolution activities required under this section. The fees may be collected biennially or pursuant to rules adopted under chapter 91, and shall be deposited into the special fund established under this subsection. Every filing pursuant to chapter 514E or section 485A-202(a)(26) shall be assessed, upon initial filing and at each renewal period in which a renewal is required, a fee that shall be prescribed by rules adopted under chapter 91, and that shall be deposited into the special fund established under this subsection. Any unpaid fee shall be paid by the licensed person, upon application for renewal, restoration, reactivation, or reinstatement of a license, and by the person responsible for the renewal, restoration, reactivation, or reinstatement of a license, upon the application for renewal, restoration, reactivation, or reinstatement of the license. If the fees are not paid, the director may deny renewal, restoration, reactivation, or reinstatement of the license. The director may establish, increase, decrease, or repeal the fees when necessary pursuant to rules adopted under chapter 91. The director may also increase or decrease the fees pursuant to section 92‑28.

There is created in the state treasury a special fund to be known as the compliance resolution fund to be expended by the director's designated representatives as provided by this subsection. Notwithstanding any law to the contrary, all revenues, fees, and fines collected by the department shall be deposited into the compliance resolution fund. Unencumbered balances existing on June 30, 1999, in the cable television fund under chapter 440G, the division of consumer advocacy fund under chapter 269, the financial institution examiners' revolving fund, section 412:2-109, the special handling fund, section 414‑13, and unencumbered balances existing on June 30, 2002, in the insurance regulation fund, section 431:2-215, shall be deposited into the compliance resolution fund. This provision shall not apply to any fee imposed by the Hawaii broadband commissioner pursuant to chapter , including the regulatory fees in sections ‑23, ‑51, ‑73, ‑75, and 92-21 the drivers education fund underwriters fee, section 431:10C-115, insurance premium taxes and revenues, revenues of the workers' compensation special compensation fund, section 386-151, the captive insurance administrative fund, section 431:19-101.8, the insurance commissioner's education and training fund, section 431:2-214, the medical malpractice patients' compensation fund as administered under section 5 of Act 232, Session Laws of Hawaii 1984, and fees collected for deposit in the office of consumer protection restitution fund, section 487-14, the real estate appraisers fund, section 466K‑1, the real estate recovery fund, section 467-16, the real estate education fund, section 467‑19, the contractors recovery fund, section 444-26, the contractors education fund, section 444-29, the condominium management education fund, section 514A-131, and the condominium education trust fund, section 514B-71. Any law to the contrary notwithstanding, the director may use the moneys in the fund to employ, without regard to chapter 76, hearings officers and attorneys. All other employees may be employed in accordance with chapter 76. Any law to the contrary notwithstanding, the moneys in the fund shall be used to fund the operations of the department. The moneys in the fund may be used to train personnel as the director deems necessary and for any other activity related to compliance resolution.

As used in this subsection, unless otherwise required by the context, "compliance resolution" means a determination of whether:

(1) Any licensee or applicant under any chapter subject to the jurisdiction of the department of commerce and consumer affairs has complied with that chapter;

(2) Any person subject to chapter 485A has complied with that chapter;

(3) Any person submitting any filing required by chapter 514E or section 485A-202(a)(26) has complied with chapter 514E or section 485A-202(a)(26);

(4) Any person has complied with the prohibitions against unfair and deceptive acts or practices in trade or commerce; or

(5) Any person subject to chapter 467B has complied with that chapter;

and includes work involved in or supporting the above functions, licensing, or registration of individuals or companies regulated by the department, consumer protection, and other activities of the department.

The director shall prepare and submit an annual report to the governor and the legislature on the use of the compliance resolution fund. The report shall describe expenditures made from the fund including non-payroll operating expenses."

SECTION 5. Section 28-8.3, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

(1) By the public utilities commission, the labor and industrial relations appeals board, and the Hawaii labor relations board;

(2) By any court or judicial or legislative office of the State; provided that if the attorney general is requested to provide representation to a court or judicial office by the chief justice or the chief justice's designee, or to a legislative office by the speaker of the house of representatives and the president of the senate jointly, and the attorney general declines to provide such representation on the grounds of conflict of interest, the attorney general shall retain an attorney for the court, judicial, or legislative office, subject to approval by the court, judicial, or legislative office;

(3) By the legislative reference bureau;

(4) By any compilation commission that may be constituted from time to time;

(5) By the real estate commission for any action involving the real estate recovery fund;

(6) By the contractors license board for any action involving the contractors recovery fund;

(7) By the trustees for any action involving the travel agency recovery fund;

(8) By the office of Hawaiian affairs;

(9) By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485A;

(10) As grand jury counsel;

(11) By the Hawaiian home lands trust individual claims review panel;

(12) By the Hawaii health systems corporation, or its regional system boards, or any of their facilities;

(13) By the auditor;

(14) By the office of ombudsman;

(15) By the insurance division;

(16) By the University of Hawaii;

(17) By the Kahoolawe island reserve commission;

(18) By the division of consumer advocacy;

(19) By the office of elections;

(20) By the campaign spending commission;

(21) By the Hawaii tourism authority, as provided in section 201B-2.5; [or]

(22) By the Hawaii broadband commissioner; or

[~~(22)~~] (23) By a department, in the event the attorney general, for reasons deemed by the attorney general good and sufficient, declines to employ or retain an attorney for a department; provided that the governor thereupon waives the provision of this section."

2. By amending subsection (c) to read:

"(c) Every attorney employed by any department on a full‑time basis, except an attorney employed by the public utilities commission, the Hawaii broadband commissioner, the labor and industrial relations appeals board, the Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health systems corporation or its regional system boards, the department of commerce and consumer affairs in prosecution of consumer complaints, insurance division, the division of consumer advocacy, the University of Hawaii, the Hawaii tourism authority as provided in section 201B-2.5, the Hawaiian home lands trust individual claims review panel, or as grand jury counsel, shall be a deputy attorney general."

SECTION 6. Section 46-15, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The mayor of each county, after holding a public hearing on the matter and receiving the approval of the respective council, shall be empowered to designate areas of land for experimental and demonstration housing projects, the purposes of which are to research and develop ideas that would reduce the cost of housing in the State. Except as hereinafter provided, the experimental and demonstration housing projects shall be exempt from all statutes, ordinances, charter provisions, and rules or regulations of any governmental agency or public utility relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction and sale of homes thereon; provided that the experimental and demonstration housing projects shall not affect the safety standards or tariffs approved by the public utility commissions or the Hawaii broadband commissioner for such public utility.

The mayor of each county with the approval of the respective council may designate a county agency or official who shall have the power to review all plans and specifications for the subdivisions, development and improvement of the land involved, and the construction and sale of homes thereon. The county agency or official shall have the power to approve or disapprove or to make modifications to all or any portion of the plans and specifications.

The county agency or official shall submit preliminary plans and specifications to the legislative body of the respective county for its approval or disapproval. The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the approved preliminary plans and specifications. The final plans and specifications shall constitute the standards for the particular project.

No action shall be prosecuted or maintained against any county, its officials or employees, on account of actions taken in reviewing, approving, or disapproving such plans and specifications.

Any experimental or demonstration housing project for the purposes hereinabove mentioned may be sponsored by any state or county agency or any person as defined in section 1-19.

The county agency or official shall apply to the state land use commission for an appropriate land use district classification change, except where a proposed project is located on land within an urban district established by the state land use commission. Notwithstanding any law, rule, or regulation to the contrary, the state land use commission may approve the application at any time after a public hearing held in the county where the land is located upon notice of the time and place of the hearing being published in the same manner as the notice required for a public hearing by the planning commission of the appropriate county."

SECTION 7. Section 91-13.5, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

"(f) This section shall not apply to:

(1) Any proceedings of the public utilities commission; [or]

(2) Any county or county agency that is exempted by county ordinance from this section[.]; or

(3) Any proceedings of the Hawaii broadband commissioner."

SECTION 8. Section 92-21, Hawaii Revised Statutes, is amended to read as follows:

"§92-21 Copies of records; other costs and fees. Except as otherwise provided by law, a copy of any government record, including any map, plan, diagram, photograph, photostat, or geographic information system digital data file, which is open to the inspection of the public, shall be furnished to any person applying for the same by the public officer having charge or control thereof upon the payment of the reasonable cost of reproducing [~~such~~] the copy. Except as provided in section 91‑2.5, the cost of reproducing any government record, except geographic information system digital data, shall not be less than 5 cents per page, sheet, or fraction thereof. The cost of reproducing geographic information system digital data shall be in accordance with rules adopted by the agency having charge or control of that data. [~~Such~~] The reproduction cost shall include but shall not be limited to labor cost for search and actual time for reproducing, material cost, including electricity cost, equipment cost, including rental cost, cost for certification, and other related costs. All fees shall be paid in by the public officer receiving or collecting the same to the state director of finance, the county director of finance, or to the agency or department by which the officer is employed, as government realizations; provided that fees collected by the public utilities commission pursuant to this section shall be deposited in the public utilities commission special fund established under section 269-33[.], and fees collected by the Hawaii broadband commissioner shall be deposited in the commissioner special fund established under section ‑20."

SECTION 9. Section 101-43, Hawaii Revised Statutes, is amended to read as follows:

"§101-43 Requirements prior to exercise of power. Any corporation having the power of eminent domain under section 101‑41 may continue to exercise the power, provided that prior to the exercise of the power:

(1) The corporation submits to the public utilities commission or, in the case of telecommunications carriers or telecommunications common carriers, to the Hawaii broadband commissioner, its intention to exercise the power, with a description of the property to be condemned; and

(2) The public utilities commission or the Hawaii broadband commissioner, as the case may be, finds that the proposed condemnation is in the public interest, that the proposed condemnation is necessary, and that the corporation will use the property for its operations as a public utility."

SECTION 10. Section 163D-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) If the corporation acquires the assets of a private or other corporation, then, notwithstanding any law to the contrary:

(1) Neither the corporation nor any subsidiary corporation vested with the assets shall be subject to chapter 91 with respect to the assets;

(2) Employees retained to operate the assets shall not be subject to chapter 76;

(3) Assets constituting real property interest shall not be subject to chapter 171;

(4) No investment, loan, or use of funds by the corporation or a subsidiary corporation vested with the assets shall be subject to chapter 42F or 103; and

(5) Neither the corporation nor a subsidiary corporation vested with the assets shall constitute a public utility or be subject to the jurisdiction of the public utilities commission under chapter 269[.] or the Hawaii broadband commissioner under chapter ."

SECTION 11. Section 166-4, Hawaii Revised Statutes, is amended to read as follows:

"§166-4 Park development. Except as herein provided, the department may develop, on behalf of the State or in partnership with a federal agency, a county, or a private party, agricultural parks which, at the option of the board, shall be exempt from all statutes, ordinances, charter provisions, and rules of any governmental agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction of buildings thereon; provided that:

(1) The board finds the agricultural park is consistent with the purpose and intent of this chapter, and meets minimum requirements of health and safety;

(2) The development of the proposed agricultural park does not contravene any safety standards or tariffs approved for public utilities by the public utilities commission [~~for public utilities;~~] or the Hawaii broadband commissioner;

(3) The legislative body of the county in which the agricultural park is to be situated shall have approved the agricultural park.

(A) The legislative body shall approve or disapprove the agricultural park within forty-five days after the department has submitted the preliminary plans and specifications for the agricultural park to the legislative body. If after the forty-fifth day an agricultural park is not disapproved, it shall be deemed approved by the legislative body.

(B) No action shall be prosecuted or maintained against any county, its officials, or employees, on account of actions taken by them in reviewing, approving, or disapproving the plans and specifications.

(C) The final plans and specifications for the agricultural park shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the preliminary plans and specifications. The final plans and specifications for the project shall constitute the planning, zoning, building, construction, and subdivision standards for that agricultural park. For purposes of sections 501‑85 and 502-17, the chairperson of the board of agriculture or the responsible county official may certify maps and plans of lands connected with the agricultural park as having complied with applicable laws and ordinances relating to consolidation and subdivision of lands, and such maps and plans shall be accepted for registration or recordation by the land court and registrar; and

(4) The State shall assume the responsibility of maintaining all roads within the agricultural park if the roads are developed exempt from applicable county ordinances, charter provisions, and rules regarding roads."

SECTION 12. Section 166E-10, Hawaii Revised Statutes, is amended to read as follows:

"[[]§166E-10[]] Non-agricultural park land development. On behalf of the State or in partnership with a federal agency, a county, or a private party and except as provided in this section, the department may develop non-agricultural park lands that, at the option of the board, may be exempt from all statutes, ordinances, charter provisions, and rules of any governmental agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and construction of buildings thereon; provided that:

(1) The board finds the development is consistent with the public purpose and intent of this chapter and meets minimum health and safety requirements;

(2) The development of the proposed non-agricultural park land does not contravene any safety standards or tariffs approved for public utilities by the public utilities commission [~~for public utilities;~~] or the Hawaii broadband commissioner;

(3) The county in which the non-agricultural park development is proposed shall approve the non‑agricultural park development; and provided further that:

(A) The county shall approve or disapprove the development within forty-five days after the department submits preliminary plans and specifications for the development to the county. If the county does not disapprove the development after the forty-fifth day, the development shall be deemed approved;

(B) No action shall be prosecuted or maintained against any county, its officials, or employees, on any actions taken by them in reviewing, approving, or disapproving the plans and specifications; and

(C) The final plans and specifications for the development shall be deemed approved by the county if the final plans and specifications do not substantially deviate from the preliminary plans and specifications. The final plans and specifications for the project shall constitute the planning, zoning, building, construction, and subdivision standards for that development. For purposes of sections 501-85 and 502-17, the chairperson of the board or the responsible county official may certify maps and plans of lands connected with the development as having complied with applicable laws and ordinances relating to consolidation and subdivision of lands, and the maps and plans shall be accepted for registration or recordation by the land court and registrar; and

(4) The State shall assume the responsibility of maintaining all roads and infrastructure improvements within the boundaries if the improvements are developed exempt from applicable county ordinances, charter provisions, and rules regarding development."

SECTION 13. Section 171-134, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) At the option of the board, the development of an industrial park shall be exempt from all statutes, ordinances, charter provisions, and rules of any governmental agency relating to planning, zoning, construction standards for subdivision development and improvement of land, and the construction of buildings thereon; provided that:

(1) The board finds that the industrial park meets the minimum requirements of health and safety;

(2) The development of the industrial park does not contravene any safety standards or tariffs approved for public utilities by the public utilities commission [~~for public utilities;~~] or the Hawaii broadband commissioner;

(3) The legislative body of the county in which the industrial park is proposed to be situated approves the industrial park[.] in accordance with the following:

(A) The legislative body shall approve or disapprove the industrial park within forty-five days after the department has submitted preliminary plans and specifications for the industrial park to the legislative body. If after the forty-fifth day, an industrial park is not disapproved, it shall be deemed approved by the legislative body[.];

(C) The final plans and specifications for the industrial park shall be deemed approved by the legislative body if the final plans and specifications for the industrial park do not substantially deviate from the preliminary plans and specifications. The determination that the final plans and specifications do not substantially deviate from the preliminary plans and specifications of the industrial park shall rest with the board. The final plans and specifications for the park shall constitute the planning, zoning, building, improvement, construction, and subdivision standards for that industrial park. For the purposes of sections 501‑85 and 502-17, the chairperson of the board or the responsible county official may certify maps and plans of land connected with the industrial park as having complied with applicable laws and ordinances relating to consolidation and subdivision of lands, and such maps and plans shall be accepted for registration or recordation by the land court and registrar; and

(4) The board shall assume the responsibility of all infrastructure within the industrial park, if the infrastructure developed is exempt from applicable county ordinances, charter provisions, and rules."

SECTION 14. Section 196D-10, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) This section shall not apply to any permit issued by the public utilities commission under chapter 269[.] or the Hawaii broadband commissioner under chapter ."

SECTION 15. Section 201H-13, Hawaii Revised Statutes, is amended to read as follows:

"[[]§201H-13[]] Eminent domain, exchange or use of public property. The corporation may acquire any real property, including fixtures and improvements, or interest therein: through voluntary negotiation; through exchange of land in accordance with section 171-50, provided that the public land to be exchanged need not be of like use to that of the private land; or by the exercise of the power of eminent domain which it deems necessary by the adoption of a resolution declaring that the acquisition of the property described therein is in the public interest and required for public use. The corporation shall exercise the power of eminent domain granted by this section in the same manner and procedure as is provided by chapter 101 and otherwise in accordance with all applicable provisions of the general laws of the State; provided that condemnation of parcels greater than fifteen acres shall be subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation.

The corporation may acquire by the exercise of the power of eminent domain property already devoted to a public use; provided that no property belonging to any government may be acquired without its consent, and that no property belonging to a public utility corporation may be acquired without the approval of the public utilities commission[,] or, in the case of telecommunications carriers or telecommunications common carriers, the Hawaii broadband commissioner, and subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation."

SECTION 16. Section 201H-33, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The corporation shall adopt, pursuant to chapter 91, rules on health, safety, building, planning, zoning, and land use that relate to the development, subdivision, and construction of dwelling units in housing projects in which the State, through the corporation, shall participate. The rules shall not contravene any safety standards or tariffs approved by the public utilities commission[,] or the Hawaii broadband commissioner, and shall follow existing law as closely as is consistent with the production of lower cost housing with standards that meet minimum requirements of good design, pleasant amenities, health, safety, and coordinated development.

When adopted, the rules shall have the force and effect of law and shall supersede, for all housing projects in which the State, through the corporation, shall participate, all other inconsistent laws, ordinances, and rules relating to the use, zoning, planning, and development of land, and the construction of dwelling units thereon. The rules, before becoming effective, shall be presented to the legislative body of each county in which they will be effective and the legislative body of any county may within forty-five days approve or disapprove, for that county, any or all of the rules by a majority vote of its members. On the forty-sixth day after submission, any rules not disapproved shall be deemed to have been approved by the county."

SECTION 17. Section 201H-38, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The corporation may develop on behalf of the State or with an eligible developer, or may assist under a government assistance program in the development of, housing projects that shall be exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction of dwelling units thereon; provided that:

(1) The corporation finds the housing project is consistent with the purpose and intent of this chapter, and meets minimum requirements of health and safety;

(2) The development of the proposed housing project does not contravene any safety standards, tariffs, or rates and fees approved for public utilities by the public utilities commission [~~for public utilities~~] or the Hawaii broadband commissioner or of the various boards of water supply authorized under chapter 54;

(3) The legislative body of the county in which the housing project is to be situated shall have approved the project with or without modifications:

(A) The legislative body shall approve, approve with modification, or disapprove the project by resolution within forty-five days after the corporation has submitted the preliminary plans and specifications for the project to the legislative body. If on the forty-sixth day a project is not disapproved, it shall be deemed approved by the legislative body;

(B) No action shall be prosecuted or maintained against any county, its officials, or employees on account of actions taken by them in reviewing, approving, modifying, or disapproving the plans and specifications; and

(C) The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the preliminary plans and specifications. The final plans and specifications for the project shall constitute the zoning, building, construction, and subdivision standards for that project. For purposes of sections 501-85 and 502‑17, the executive director of the corporation or the responsible county official may certify maps and plans of lands connected with the project as having complied with applicable laws and ordinances relating to consolidation and subdivision of lands, and the maps and plans shall be accepted for registration or recordation by the land court and registrar; and

(4) The land use commission shall approve, approve with modification, or disapprove a boundary change within forty-five days after the corporation has submitted a petition to the commission as provided in section 205‑4. If, on the forty-sixth day, the petition is not disapproved, it shall be deemed approved by the commission."

SECTION 18. Section 205A-46, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A variance may be granted for a structure or activity otherwise prohibited in this part if the authority finds in writing, based on the record presented, that the proposed structure or activity is necessary for or ancillary to:

(1) Cultivation of crops;

(2) Aquaculture;

(3) Landscaping; provided that the authority finds that the proposed structure or activity will not adversely affect beach processes and will not artificially fix the shoreline;

(4) Drainage;

(5) Boating, maritime, or watersports recreational facilities;

(6) Facilities or improvements by public agencies or public utilities regulated under chapter 269[;] or chapter ;

(7) Private facilities or improvements that are clearly in the public interest;

(8) Private facilities or improvements which will neither adversely affect beach processes nor artificially fix the shoreline; provided that the authority also finds that hardship will result to the applicant if the facilities or improvements are not allowed within the shoreline area;

(9) Private facilities or improvements that may artificially fix the shoreline; provided that the authority also finds that shoreline erosion is likely to cause hardship to the applicant if the facilities or improvements are not allowed within the shoreline area, and the authority imposes conditions to prohibit any structure seaward of the existing shoreline unless it is clearly in the public interest; or

(10) Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline; provided that the authority also finds that moving of sand will not adversely affect beach processes, will not diminish the size of a public beach, and will be necessary to stabilize an eroding shoreline."

SECTION 19. Section 239-6.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§239-6.5[]] Tax credit for lifeline telephone service subsidy. A telephone public utility subject to this chapter that has been authorized to establish lifeline telephone service rates by the public utilities commission before July 1, 2009, or by the Hawaii broadband commissioner on or after July 1, 2009, shall be allowed a tax credit, equal to the lifeline telephone service costs incurred by the utility, to be applied against the utility's tax imposed by this chapter. The amount of this credit shall be determined and certified annually by the [~~public utilities commission.~~] Hawaii broadband commissioner. The tax liability for a telephone public utility claiming the credit shall be calculated in the manner prescribed in section 239-5; provided that the amount of tax due from the utility shall be net of the lifeline service credit."

SECTION 20. Section 264-20, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Any other law to the contrary notwithstanding, any decision by the State, the department of transportation, a county, or any officers, employees, or agents of the State, the department of transportation, or a county to select or apply flexibility in highway design pursuant to this section and consistent with the practices used by the Federal Highway Administration and the American Association of State Highway and Transportation Officials shall not give rise to a cause of action or claim against:

(1) The State;

(2) The department of transportation;

(3) The counties;

(4) Any public utility regulated under chapter 269 or chapter that places its facilities within the highway right-of-way; or

(5) Any officer, employee, or agent of an entity listed in paragraphs (1) to (4)."

SECTION 21. Section 269-1, Hawaii Revised Statutes, is amended as follows:

1. By repealing the definitions of "carrier of last resort" and "designated local exchange service area":

[""Carrier of last resort" means a telecommunications carrier designated by the commission to provide universal service in a given local exchange service area determined to be lacking in effective competition.

~~"Designated local exchange service area" means an area as determined by the commission to be best served by designating a carrier of last resort pursuant to section 269-43.~~"]

2. By amending the definition of "public utility" to read:

""Public utility":

(1) Includes every person who may own, control, operate, or manage as owner, lessee, trustee, receiver, or otherwise, whether under a franchise, charter, license, articles of association, or otherwise, any plant or equipment, or any part thereof, directly or indirectly for public use, for the transportation of passengers or freight, or the conveyance or transmission of telecommunications messages, or the furnishing of facilities for the transmission of intelligence by electricity by land or water or air within the State, or between points within the State, or for the production, conveyance, transmission, delivery, or furnishing of light, power, heat, cold, water, gas, or oil, or for the storage or warehousing of goods, or the disposal of sewage; provided that the term shall include:

(A) Any person insofar as that person owns or operates a private sewer company or sewer facility; and

(B) Any telecommunications carrier or telecommunications common carrier;

(2) Shall not include:

(A) Any person insofar as that person owns or operates an aerial transportation enterprise;

(B) Persons owning or operating taxicabs, as defined in this section;

(C) Common carriers transporting only freight on the public highways, unless operating within localities or along routes or between points that the public utilities commission finds to be inadequately serviced without regulation under this chapter;

(D) Persons engaged in the business of warehousing or storage unless the commission finds that regulation thereof is necessary in the public interest;

(E) The business of any carrier by water to the extent that the carrier enters into private contracts for towage, salvage, hauling, or carriage between points within the State and the carriage is not pursuant to either an established schedule or an undertaking to perform carriage services on behalf of the public generally;

(F) The business of any carrier by water, substantially engaged in interstate or foreign commerce, transporting passengers on luxury cruises between points within the State or on luxury round-trip cruises returning to the point of departure;

(G) Any person who:

(i) Controls, operates, or manages plants or facilities for the production, transmission, or furnishing of power primarily or entirely from nonfossil fuel sources; and

(ii) Provides, sells, or transmits all of that power, except such power as is used in its own internal operations, directly to a public utility for transmission to the public;

(H) A telecommunications provider only to the extent determined by the [~~commission~~] Hawaii broadband commissioner pursuant to section [~~269-16.9;~~] ‑34;

(I) Any person who controls, operates, or manages plants or facilities developed pursuant to chapter 167 for conveying, distributing, and transmitting water for irrigation and such other purposes that shall be held for public use and purpose;

(J) Any person who owns, controls, operates, or manages plants or facilities for the reclamation of wastewater; provided that:

(i) The services of the facility shall be provided pursuant to a service contract between the person and a state or county agency and at least ten per cent of the wastewater processed is used directly by the State or county which has entered into the service contract;

(ii) The primary function of the facility shall be the processing of secondary treated wastewater that has been produced by a municipal wastewater treatment facility that is owned by a state or county agency;

(iii) The facility shall not make sales of water to residential customers;

(iv) The facility may distribute and sell recycled water or reclaimed water to entities not covered by a state or county service contract; provided that, in the absence of regulatory oversight and direct competition, the distribution and sale of recycled or reclaimed water shall be voluntary and its pricing fair and reasonable. For purposes of this subparagraph, "recycled water" and "reclaimed water" mean treated wastewater that by design is intended or used for a beneficial purpose; and

(v) The facility shall not be engaged, either directly or indirectly, in the processing of food wastes; and

(K) Any person who owns, controls, operates, or manages any seawater air conditioning district cooling project; provided that at least fifty per cent of the energy required for the seawater air conditioning district cooling system is provided by a renewable energy resource, such as cold, deep seawater.

If the application of this chapter is ordered by the commission or the Hawaii broadband commissioner, as the case may be, in any case provided in paragraphs (2)(C), (2)(D), (2)(H), and (2)(I), the business of any public utility that presents evidence of bona fide operation on the date of the commencement of the proceedings resulting in the order shall be presumed to be necessary to public convenience and necessity, but any certificate issued under this proviso shall nevertheless be subject to [~~such~~] terms and conditions as the commission or the Hawaii broadband commissioner, respectively, may prescribe, as provided in sections [~~269-16.9~~] ‑34 and 269-20."

3. By amending the definition of "telecommunications carrier" or "telecommunications common carrier" to read:

""Telecommunications carrier" or "telecommunications common carrier" [means any person that owns, operates, manages, or controls any facility used to furnish telecommunications services for profit to the public, or to classes of users as to be effectively available to the public, engaged in the provision of services, such as voice, data, image, graphics, and video services, that make use of all or part of their transmission facilities, switches, broadcast equipment, signaling, or control devices.] has the same meaning as in section ‑1."

4. By amending the definition of "telecommunications service" or "telecommunications" to read:

""Telecommunications service" or "telecommunications" [means the offering of transmission between or among points specified by a user, of information of the user's choosing, including voice, data, image, graphics, and video without change in the form or content of the information, as sent and received, by means of electromagnetic transmission, or other similarly capable means of transmission, with or without benefit of any closed transmission medium, and does not include cable service as defined in section 440G-3.] has the same meaning as in section ‑1."

SECTION 22. Section 269-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The public utilities commission shall have the general supervision hereinafter set forth over all public utilities, and shall perform the duties and exercise the powers imposed or conferred upon it by this chapter. Included among the general powers of the commission is the authority to adopt rules pursuant to chapter 91 necessary for the purposes of this chapter. Chapter 269 shall apply to telecommunications carriers or telecommunications common carriers until such time as the Hawaii broadband commissioner is sworn in and the Hawaii broadband commissioner issues an order accepting the commissioner's authority and undertaking to enforce chapter ."

SECTION 23. Section 269-16, Hawaii Revised Statutes, is amended to read as follows:

"§269-16 Regulation of utility rates; ratemaking procedures. (a) All rates, fares, charges, classifications, schedules, rules, and practices made, charged, or observed by any public utility or by two or more public utilities jointly shall be just and reasonable and shall be filed with the public utilities commission. The rates, fares, classifications, charges, and rules of every public utility shall be published by the public utility in [~~such~~] the manner as the public utilities commission may require, and copies shall be furnished to any person on request.

To the extent the contested case proceedings referred to in chapter 91 are required in any rate proceeding to ensure fairness and to provide due process to parties that may be affected by rates approved by the commission, the evidentiary hearings shall be conducted expeditiously and shall be conducted as a part of the ratemaking proceeding.

(b) No rate, fare, charge, classification, schedule, rule, or practice, other than one established pursuant to an automatic rate adjustment clause previously approved by the commission, shall be established, abandoned, modified, or departed from by any public utility, except after thirty days' notice to the commission as prescribed in section 269-12(b), and prior approval by the commission for any increases in rates, fares, or charges. The commission, in its discretion and for good cause shown, may allow any rate, fare, charge, classification, schedule, rule, or practice to be established, abandoned, modified, or departed from upon notice less than that provided for in section 269-12(b). A contested case hearing shall be held in connection with any increase in rates, and the hearing shall be preceded by a public hearing as prescribed in section 269‑12(c), at which the consumers or patrons of the public utility may present testimony to the commission concerning the increase. The commission, upon notice to the public utility, may:

(2) After a hearing, by order:

(A) Regulate, fix, and change all [~~such~~] rates, fares, charges, classifications, schedules, rules, and practices so that the same shall be just and reasonable;

(B) Prohibit rebates and unreasonable discrimination between localities or between users or consumers under substantially similar conditions;

(C) Regulate the manner in which the property of every public utility is operated with reference to the safety and accommodation of the public;

(D) Prescribe its form and method of keeping accounts, books, and records, and its accounting system;

(E) Regulate the return upon its public utility property;

(F) Regulate the incurring of indebtedness relating to its public utility business; and

(G) Regulate its financial transactions; and

(3) Do all things that are necessary and in the exercise of the commission's power and jurisdiction, all of which as so ordered, regulated, fixed, and changed are just and reasonable, and provide a fair return on the property of the utility actually used or useful for public utility purposes.

(c) The commission may in its discretion, after public hearing and upon showing by a public utility of probable entitlement and financial need, authorize temporary increases in rates, fares, and charges; provided that the commission shall require by order the public utility to return, in the form of an adjustment to rates, fares, or charges to be billed in the future, any amounts with interest, at a rate equal to the rate of return on the public utility's rate base found to be reasonable by the commission, received by reason of continued operation that are in excess of the rates, fares, or charges finally determined to be just and reasonable by the commission. Interest on any excess shall commence as of the date that any rate, fare, or charge goes into effect that results in the excess and shall continue to accrue on the balance of the excess until returned.

(d) The commission shall make every effort to complete its deliberations and issue its decision as expeditiously as possible and before nine months from the date the public utility filed its completed application; provided that in carrying out this mandate, the commission shall require all parties to a proceeding to comply strictly with procedural time schedules that it establishes. If a decision is rendered after the nine-month period, the commission shall report in writing the reasons therefor to the legislature within thirty days after rendering the decision.

Notwithstanding subsection (c), if the commission has not issued its final decision on a public utility's rate application within the nine-month period stated in this section, the commission, within one month after the expiration of the nine-month period, shall render an interim decision allowing the increase in rates, fares and charges, if any, to which the commission, based on the evidentiary record before it, believes the public utility is probably entitled. The commission may postpone its interim rate decision for thirty days if the commission considers the evidentiary hearings incomplete. In the event interim rates are made effective, the commission shall require by order the public utility to return, in the form of an adjustment to rates, fares, or charges to be billed in the future, any amounts with interest, at a rate equal to the rate of return on the public utility's rate base found to be reasonable by the commission, received under the interim rates that are in excess of the rates, fares, or charges finally determined to be just and reasonable by the commission. Interest on any excess shall commence as of the date that any rate, fare, or charge goes into effect that results in the excess and shall continue to accrue on the balance of the excess until returned.

The nine-month period in this subsection shall begin only after a completed application has been filed with the commission and a copy served on the consumer advocate. The commission shall establish standards concerning the data required to be set forth in the application in order for it to be deemed a completed application. The consumer advocate may, within twenty-one days after receipt, object to the sufficiency of any application, and the commission shall hear and determine any objection within twenty-one days after it is filed. If the commission finds that the objections are without merit, the application shall be deemed to have been completed upon original filing. If the commission finds the application to be incomplete, it shall require the applicant to submit an amended application consistent with its findings, and the nine-month period shall not commence until the amended application is filed.

(e) In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the State of Hawaii, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the commission may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among the organizations, trades, or businesses, if it determines that the distribution, apportionment, or allocation is necessary to adequately reflect the income of any [~~such~~] of the organizations, trades, or businesses to carry out the regulatory duties imposed by this section.

(f) Notwithstanding any law to the contrary, for public utilities having annual gross revenues of less than $2,000,000, the commission may make and amend its rules and procedures to provide the commission with sufficient facts necessary to determine the reasonableness of the proposed rates without unduly burdening the utility company and its customers. In the determination of the reasonableness of the proposed rates, the commission shall:

(1) Require the filing of a standard form application to be developed by the commission. The standard form application for general rate increases shall describe the specific facts that shall be submitted to support a determination of the reasonableness of the proposed rates, and require the submission of financial information in conformance with a standard chart of accounts to be approved by the commission, and other commission guidelines to allow expeditious review of a requested general rate increase application;

(2) Hold a public hearing as prescribed in section 269‑12(c) at which the consumers or patrons of the public utility may present testimony to the commission concerning the increase. The public hearing shall be preceded by proper notice, as prescribed in section 269‑12; and

(3) Make every effort to complete its deliberations and issue a proposed decision and order within six months from the date the public utility files a completed application with the commission; provided that all parties to the proceeding strictly comply with the procedural schedule established by the commission and no person is permitted to intervene. If a proposed decision and order is rendered after the six-month period, the commission shall report in writing the reasons therefor to the legislature within thirty days after rendering the proposed decision and order. Prior to the issuance of the commission's proposed decision and order, the parties shall not be entitled to a contested case hearing.

If all parties to the proceeding accept the proposed decision and order, the parties shall not be entitled to a contested case hearing, and section 269‑15.5 shall not apply. If the commission permits a person to intervene, the six‑month period shall not apply and the commission shall make every effort to complete its deliberations and issue its decision within the nine‑month period from the date the public utility's completed application was filed, pursuant to subsections (b), (c), and (d).

If a party does not accept the proposed decision and order, either in whole or in part, that party shall give notice of its objection or nonacceptance within the timeframe prescribed by the commission in the proposed decision and order, setting forth the basis for its objection or nonacceptance; provided that the proposed decision and order shall have no force or effect pending the commission's final decision. If notice is filed, the above six‑month period shall not apply and the commission shall make every effort to complete its deliberations and issue its decision within the nine‑month period from the date the public utility's completed application was filed as set forth in subsection (d). Any party that does not accept the proposed decision and order under this paragraph shall be entitled to a contested case hearing; provided that the parties to the proceeding may waive the contested case hearing.

Public utilities subject to this subsection shall follow the standard chart of accounts to be approved by the commission for financial reporting purposes. The public utilities shall file a certified copy of the annual financial statements in addition to an updated chart of accounts used to maintain their financial records with the commission and consumer advocate within ninety days from the end of each calendar or fiscal year, as applicable, unless this timeframe is extended by the commission. The owner, officer, general partner, or authorized agent of the utility shall certify that the reports were prepared in accordance with the standard chart of accounts.

(g) Any automatic fuel rate adjustment clause requested by a public utility in an application filed with the commission shall be designed, as determined in the commission's discretion, to:

(1) Fairly share the risk of fuel cost changes between the public utility and its customers;

(2) Provide the public utility with sufficient incentive to reasonably manage or lower its fuel costs and encourage greater use of renewable energy;

(3) Allow the public utility to mitigate the risk of sudden or frequent fuel cost changes that cannot otherwise reasonably be mitigated through other commercially available means, such as through fuel hedging contracts;

(4) Preserve, to the extent reasonably possible, the public utility's financial integrity; and

(5) Minimize, to the extent reasonably possible, the public utility's need to apply for frequent applications for general rate increases to account for the changes to its fuel costs.

(h) Notwithstanding any law to the contrary, this chapter shall not apply to the rates, fares, and charges of the incumbent local exchange carrier, and the incumbent local exchange carrier shall not be required to obtain approval or provide any cost support or other information to establish or otherwise modify in any manner its rates, fares, and charges and shall not be required to bundle any service offerings into a single or combined pricing package. Notwithstanding the above, all rates, fares, charges, and bundled service offerings shall be filed with the commission for informational purposes only and become effective immediately upon filing."

SECTION 24. Section 269-51, Hawaii Revised Statutes, is amended to read as follows:

"§269-51 Consumer advocate; director of commerce and consumer affairs. The director of commerce and consumer affairs shall be the consumer advocate in hearings before the public utilities commission[.] and the Hawaii broadband commissioner. The consumer advocate shall represent, protect, and advance the interests of all consumers, including small businesses, of utility services. The consumer advocate shall not receive any salary in addition to the salary received as director of commerce and consumer affairs.

The responsibility for advocating the interests of the consumer of utility services shall be separate and distinct from the responsibilities of the public utilities commission and those assistants employed by the commission. As consumer advocate, the director of commerce and consumer affairs shall have full rights to participate as a party in interest in all proceedings before the public utilities commission[.] and the Hawaii broadband commissioner."

SECTION 25. Section 269-54, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) to read as follows:

"(d) Whenever it appears to the consumer advocate that: (1) any public utility, telecommunications carrier, or cable operator has violated or failed to comply with any provision of this part or of any state or federal law; (2) any public utility, telecommunications carrier, or cable operator has failed to comply with any rule, regulation, or other requirement of the public utilities commission, the Hawaii broadband commissioner, or of any other state or federal agency; (3) any public utility, telecommunications carrier, or cable operator has failed to comply with any provision of its charter, certificate of public convenience and necessity, or franchise; (4) changes, additions, extensions, or repairs to the plant or service of any public utility, telecommunications carrier, or cable operator are necessary to meet the reasonable convenience or necessity of the public; or (5) the rates, fares, classifications, charges, or rules of any public utility, telecommunications carrier, or cable operator are unreasonable or unreasonably discriminatory, the consumer advocate may institute proceedings for appropriate relief before the public utilities commission[.] or the Hawaii broadband commissioner, as applicable. The consumer advocate may appeal any final decision and order in any proceeding to which the consumer advocate is a party in the manner provided by law.

(e) The consumer advocate may file with the public utilities commission or the Hawaii broadband commissioner, as the case may be, and serve on any public utility, telecommunications carrier, or cable operator a request in writing to furnish any information reasonably relevant to any matter or proceeding before the public utilities commission or the Hawaii broadband commissioner or reasonably required by the consumer advocate to perform the duties hereunder. Any [~~such~~] request shall set forth with reasonable specificity the purpose for which the information is requested and shall designate with reasonable specificity the information desired. The public utility, telecommunications carrier, or cable operator shall comply with [~~such~~] the request within the time limit set forth by the consumer advocate unless within ten days following service it requests a hearing on the matter before the public utilities commission or the Hawaii broadband commissioner and states its reasons therefor. If a hearing is requested, the public utilities commission or the Hawaii broadband commissioner, as the case may be, shall proceed to hold the hearing and make its determination on the request within thirty days after the same is filed. The consumer advocate or the public utility may appeal the decision of the commission on any [~~such~~] request, subject to chapter 602, in the manner provided for civil appeals from the circuit courts. The consumer advocate, telecommunications carrier, or cable operator may appeal the decision of the Hawaii broadband commissioner, in the manner provided for in section ‑16. Subject to the foregoing, such requests may ask the public utility, telecommunications carrier, or cable operator to:

(1) Furnish any information [~~with which~~] that the consumer advocate may require concerning the condition, operations, practices, or services of the public utility[;], telecommunications carrier, or cable operator;

(2) Produce and permit the consumer advocate or the consumer advocate's representative to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, recordings, and other data compilations from which information can be obtained), or to inspect and copy, test, or sample any designated tangible thing which is in the possession, custody, or control of the public utility[;], telecommunications carrier, or cable operator; or

(3) Permit entry upon land or other property in the possession or control of the public utility, telecommunications carrier, or cable operator for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object thereon."

SECTION 26. Section 269-55, Hawaii Revised Statutes, is amended to read as follows:

"§269-55 Handling of complaints. The consumer advocate shall counsel public utility, telecommunications, and cable service customers in the handling of consumer complaints before the public utilities commission[.] or the Hawaii broadband commissioner. The public utilities commission shall provide a central clearinghouse of information by collecting and compiling all consumer complaints and inquiries concerning public utilities. The Hawaii broadband commissioner shall provide a central clearinghouse of information by collecting and compiling all consumer complaints and inquiries concerning telecommunications carriers and cable operators."

SECTION 27. Section 339K-2, Hawaii Revised Statutes, is amended to read as follows:

"[[]§339K-2[]] Compact administrator. The compact administrator, acting jointly with like officers of other party states, may [~~promulgate~~] adopt rules and regulations to carry out more effectively the terms of the compact. The compact administrator shall cooperate with all departments, agencies, and officers of and in the government of this State and its subdivisions in facilitating the present administration of the compact or of any supplementary agreement or agreements entered into by this State thereunder. The compact administrator shall adopt the practices and may impose the fees authorized under article III of the compact, except that state and county law enforcement agencies [~~and~~], the public utilities commission, and the Hawaii broadband commissioner shall retain their enforcement and inspection authority relating to carriers."

SECTION 28. Section 356D-15, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The authority may acquire by the exercise of the power of eminent domain property already devoted to a public use; provided that no property belonging to any government may be acquired without its consent, and that no property belonging to a public utility may be acquired without the approval of the public utilities commission[;] or, in the case of telecommunications carriers or telecommunications common carriers, the Hawaii broadband commissioner; and provided further that the acquisition is subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation."

SECTION 29. Section 448E-13, Hawaii Revised Statutes, is amended to read as follows:

"§448E-13 Exemption of public utility and [~~community antennae~~] cable television company employees. All employees of a public utility within the State under a franchise or charter granted by the State [~~which~~] that is regulated by the public utilities commission or the Hawaii broadband commissioner and [~~community antennae television company,~~] a cable television franchisee, while so employed, shall be exempt from the provision of this chapter."

SECTION 30. Section 481-11, Hawaii Revised Statutes, is amended to read as follows:

"§481-11 Remedies cumulative. The remedies prescribed in this part are cumulative and in addition to the remedies prescribed in [~~chapter~~] chapters 269 and for discriminations by public utilities. If any conflict arises between this part and chapter 269[~~, the latter prevails.~~] or chapter , chapter 269 or chapter , whichever is applicable, shall prevail."

SECTION 31. Section 481P-5, Hawaii Revised Statutes, is amended to read as follows:

"§481P-5 Exemptions. This chapter shall not apply to:

(1) A person who initiates telephone calls to a residence for the sole purpose of polling or soliciting the expression of ideas, opinions, or votes, or a person soliciting solely for a political or religious cause or purpose;

(2) A securities broker-dealer, salesperson, investment adviser, or investment adviser representative who is registered with this State to sell securities or who is authorized to sell securities in this State pursuant to federal securities laws, when soliciting over the telephone within the scope of the person's registration;

(3) A financial institution that is authorized to accept deposits under its chartering or licensing authority where such deposits are insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration, including but not limited to a bank, savings bank, savings and loan association, depository financial services loan company, or credit union, or a nondepository financial services loan company that is licensed or authorized to conduct business in this State by the commissioner of financial institutions, or an affiliate or subsidiary of a financial institution as defined in chapter 412;

(4) A person or organization that is licensed or authorized to conduct business in this State by the insurance commissioner including but not limited to an insurance company and its employees, while engaged in the business of selling or advertising the sale of insurance products or services;

(5) A college or university accredited by an accrediting organization recognized by the United States Department of Education;

(6) A person who publishes a catalog of at least fifteen pages, four times a year, with a circulation of at least one hundred thousand, where the catalog includes clear disclosure of sale prices, shipping, handling, and other charges;

(7) A political subdivision or instrumentality of the United States, or any state of the United States;

(8) The sale of goods or services by telecommunications or landline (i.e., cable) or wireless video service providers, for which the terms and conditions of the offering, production, or sale are regulated by the [~~public utilities commission~~] Hawaii broadband commissioner or the Federal Communications Commission, [~~or pursuant to chapter 440G,~~] including the sale of goods or services by affiliates of these telecommunications or video service providers. Nothing herein shall be construed to preclude or preempt actions brought under any other laws including chapter 480;

(9) A real estate broker or salesperson who is licensed by this State to sell real estate, when soliciting within the scope of the license; or

(10) A travel agency that is registered with this State, when engaging in the business of selling or advertising the sale of travel services."

SECTION 32. Section 481X-1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) This chapter shall not apply to:

(1) Express or implied warranties;

(2) Maintenance agreements; and

(3) Warranties, service contracts, and maintenance agreements offered by public utilities on their transmission devices to the extent they are regulated by the public utilities commission or the [~~department of commerce and consumer affairs.~~] Hawaii broadband commissioner."

SECTION 33. Section 486J-11, Hawaii Revised Statutes, is amended to read as follows:

"§486J-11 Powers of the public utilities commission[.] and the Hawaii broadband commissioner. (a) The public utilities commission and the Hawaii broadband commissioner may take any action or make any determination under this chapter, including but not limited to actions or determinations that affect persons not regulated under chapters 269, , 271, and 271G, as the public utilities commission or the Hawaii broadband commissioner deems necessary to carry out its responsibilities or otherwise effectuate chapter 269, , 271, or 271G.

(b) The public utilities commission or, in the case of telecommunications carriers or telecommunications common carriers, the Hawaii broadband commissioner, may examine or investigate each distributor, the manner in which it is operated, its prices and rates, its operating costs and expenses, the value of its property and assets, the amount and disposition of its income, any of its financial transactions, its business relations with other persons, companies, or corporations, its compliance with all applicable state and federal laws, and all matters of any nature affecting the relations and transactions between the distributor and the public, persons, or businesses.

(c) In the performance of its duties under this chapter, the public utilities commission and the Hawaii broadband commissioner shall have the same powers respecting administering oaths, compelling the attendance of witnesses and the production of documents, examining witnesses, and punishing for contempt, as are possessed by the circuit courts. In case of disobedience by any person to any order of or subpoena issued by the public utilities commission[,] or the Hawaii broadband commissioner, or of the refusal of any witness to testify to any matter regarding which the witness may be lawfully questioned, any circuit court, upon application by the public utilities commission[,] or the Hawaii broadband commissioner, shall compel obedience as in case of disobedience of the requirements of a subpoena issued from a circuit court or a refusal to testify therein."

SECTION 34. Section 659-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§659-3[]] Forfeiture of franchise. The several circuit courts shall have jurisdiction of all proceedings in, or in the nature of, quo warranto, brought by or in the name of the public utilities commission, the Hawaii broadband commissioner, or the State, for the forfeiture of the franchise of any corporate body offending against any law relating to such corporation, for misuser, for nonuser, for doing or committing any act or acts amounting to a surrender of its charter and for exercising rights not conferred upon it."

SECTION 35. Section 708-800, Hawaii Revised Statutes, is amended by amending the definition of "telecommunication service" to read as follows:

""Telecommunication service" means the offering of transmission between or among points specified by a user, of information of the user's choosing, including voice, data, image, graphics, and video without change in the form or content of the information, as sent and received, by means of electromagnetic transmission, or other similarly capable means of transmission, with or without benefit of any closed transmission medium, and does not include cable service as defined in section [~~440G-3.~~] ‑1."

SECTION 36. Section 269-16.5, Hawaii Revised Statutes, is repealed.

["~~§269-16.5 Lifeline telephone rates.~~ ~~(a) The public utilities commission shall implement a program to achieve lifeline telephone rates for residential telephone users.~~

(b) "Lifeline telephone rate" means a discounted rate for residential telephone users identified as elders with limited income and the handicapped with limited income as designated by the commission.

~~(c) The commission shall require every telephone public utility providing local telephone service to file a schedule of rates and charges providing a rate for lifeline telephone subscribers.~~

(d) Nothing in this section shall preclude the commission from changing any rate established pursuant to subsection (a) either specifically or pursuant to any general restructuring of all telephone rates, charges, and classifications."]

SECTION 37. Section 269-16.6, Hawaii Revised Statutes, is repealed.

["~~§269-16.6 Telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities.~~ ~~(a) The public utilities commission shall implement intrastate telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities.~~

(b) The commission shall investigate the availability of experienced providers of quality telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities. The provision of these telecommunications relay services to be rendered on or after July 1, 1992, shall be awarded by the commission to the provider or providers the commission determines to be best qualified to provide these services. In reviewing the qualifications of the provider or providers, the commission shall consider the factors of cost, quality of services, and experience, and such other factors as the commission deems appropriate.

(c) If the commission determines that the telecommunications relay service can be provided in a cost-effective manner by a service provider or service providers, the commission may require every intrastate telecommunications carrier to contract with such provider or providers for the provision of the telecommunications relay service under the terms established by the commission.

~~(d) The commission may establish a surcharge to collect customer contributions for telecommunications relay services required under this section.~~

~~(e) The commission may adopt rules to establish a mechanism to recover the costs of administering and providing telecommunications relay services required under this section.~~

(f) The commission shall require every intrastate telecommunications carrier to file a schedule of rates and charges and every provider of telecommunications relay service to maintain a separate accounting for the costs of providing telecommunications relay services for the deaf, persons with hearing disabilities, and persons with speech disabilities.

(g) Nothing in this section shall preclude the commission from changing any rate established pursuant to this section either specifically or pursuant to any general restructuring of all telephone rates, charges, and classifications.

~~(h) As used in this section:~~

"Telecommunications relay services" means telephone transmission services that provide an individual who has a hearing or speech disability the ability to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing or speech disability to communicate using wire or radio voice communication services. "Telecommunications relay services" includes services that enable two-way communication using text telephones or other nonvoice terminal devices, speech-to-speech services, video relay services, and non-English relay services."]

SECTION 38. Section 269-16.8, Hawaii Revised Statutes, is repealed.

["~~[§269-16.8] Aggregators of telephone service requirements.~~ ~~(a) For the purposes of this section:~~

"Aggregator" means every person or entity that is not a telecommunications carrier, who, in the ordinary course of its business, makes telephones available and aggregates the calls of the public or transient users of its business, including but not limited to a hotel, motel, hospital, or university, that provides operator-assisted services through access to an operator service provider.

~~"Operator service" means a service provided by a telecommunications company to assist a customer to complete a telephone call.~~

(b) The commission, by rule or order, shall adopt and enforce operating requirements for the provision of operator-assisted services by an aggregator. These requirements shall include, but not be limited to, the following:

~~(1)~~ Posting and display of information in a prominent and conspicuous fashion on or near the telephone equipment owned or controlled by the aggregator which states the identity of the operator service provider, the operator service provider's complaint handling procedures, and means by which the customer may access the various operator service providers.

~~(2)~~ Identification by name of the operator service provider prior to the call connection and, if not posted pursuant to subsection (b)(1), a disclosure of pertinent rates, terms, conditions, and means of access to various operator service providers and the local exchange carriers; provided that the operator service provider shall disclose this information at any time upon request by the customer.

~~(3)~~ ~~Allowing the customer access to any operator service provider operating in the relevant geographic area through the access method chosen by the provider or as deemed appropriate by the commission.~~

~~(4)~~ ~~Other requirements as deemed reasonable by the commission in the areas of public safety, quality of service, unjust or discriminatory pricing, or other matters in the public interest.~~"]

SECTION 39. Section 269-16.9, Hawaii Revised Statutes, is repealed.

["~~§269-16.9~~ Telecommunications providers and services. (a) Notwithstanding any provision of this chapter to the contrary, the commission, upon its own motion or upon the application of any person, and upon notice and hearing, may exempt a telecommunications provider or a telecommunications service from any or all of the provisions of this chapter, except the provisions of section 269-34, upon a determination that the exemption is in the public interest. In determining whether an exemption is in the public interest, the commission shall consider whether the exemption promotes state policies in telecommunications, the development, maintenance, and operation of effective and economically efficient telecommunications services, and the furnishing of telecommunications services at just and reasonable rates and in a fair manner in view of the needs of the various customer segments of the telecommunications industry. Among the specific factors the commission may consider are:

~~(1)~~ ~~The responsiveness of the exemption to changes in the structure and technology of the State's telecommunications industry;~~

~~(2)~~ ~~The benefits accruing to the customers and users of the exempt telecommunications provider or service;~~

~~(3)~~ ~~The impact of the exemption on the quality, efficiency, and availability of telecommunications services;~~

~~(4)~~ ~~The impact of the exemption on the maintenance of fair, just, and reasonable rates for telecommunications services;~~

~~(5)~~ ~~The likelihood of prejudice or disadvantage to ratepayers of basic local exchange service resulting from the exemption;~~

~~(6)~~ ~~The effect of the exemption on the preservation and promotion of affordable, universal, basic telecommunications services as those services are determined by the commission;~~

~~(7)~~ ~~The resulting subsidization, if any, of the exempt telecommunications service or provider by nonexempt services;~~

~~(8)~~ ~~The impact of the exemption on the availability of diversity in the supply of telecommunications services throughout the State;~~

~~(9)~~ ~~The improvements in the regulatory system to be gained from the exemption, including the reduction in regulatory delays and costs;~~

~~(10)~~ ~~The impact of the exemption on promoting innovations in telecommunications services;~~

~~(11)~~ ~~The opportunity provided by the exemption for telecommunications providers to respond to competition; and~~

~~(12)~~ ~~The potential for the exercise of substantial market power by the exempt provider or by a provider of the exempt telecommunications service.~~

(b) The commission shall expedite, where practicable, the regulatory process with respect to exemptions and shall adopt guidelines under which each provider of an exempted service shall be subject to similar terms and conditions.

(c) The commission may condition or limit any exemption as the commission deems necessary in the public interest. The commission may provide a trial period for any exemption and may terminate the exemption or continue it for such period and under such conditions and limitations as it deems appropriate.

(d) The commission may require a telecommunications provider to apply for a certificate of public convenience and necessity pursuant to section 269-7.5; provided that the commission may waive any application requirement whenever it deems the waiver to be in furtherance of the purposes of this section. The exemptions under this section may be granted in a proceeding for certification or in a separate proceeding.

(e) The commission may waive other regulatory requirements under this chapter applicable to telecommunications providers when it determines that competition will serve the same purpose as public interest regulation.

(f) If any provider of an exempt telecommunications service or any exempt telecommunications provider elects to terminate its service, it shall provide notice of this to its customers, the commission, and every telephone public utility providing basic local exchange service in this State. The notice shall be in writing and given not less than six months before the intended termination date. Upon termination of service by a provider of an exempt service or by an exempt provider, the appropriate telephone public utility providing basic local exchange service shall ensure that all customers affected by the termination receive basic local exchange service. The commission shall, upon notice and hearing or by rule, determine the party or parties who shall bear the cost, if any, of access to the basic local exchange service by the customers of the terminated exempt service.

(g) Upon the petition of any person or upon its own motion, the commission may rescind any exemption or waiver granted under this section if, after notice and hearing, it finds that the conditions prompting the granting of the exemption or waiver no longer apply, or that the exemption or waiver is no longer in the public interest, or that the telecommunications provider has failed to comply with one or more of the conditions of the exemption or applicable statutory or regulatory requirements.

(h) For purposes of this section, the commission, upon determination that any area of the State has less than adequate telecommunications service, shall require the existing telecommunications provider to show cause as to why the commission should not authorize an alternative telecommunications provider for that area under the terms and conditions of this section."]

SECTION 40. Section 269-16.91, Hawaii Revised Statutes, is repealed.

["~~[§269-16.91] Universal service subsidies.~~ (a) For any alternative telecommunications provider authorized to provide basic local exchange service to any area of the State pursuant to section 269-16.9(h), the commission may consider the following:

~~(1)~~ ~~Transferring the subsidy, if any, of the local exchange provider's basic residential telephone service to the alternative provider; and~~

~~(2)~~ Transferring from the local exchange carrier to the alternative provider the amounts, if any, generated by the local exchange provider's services other than basic residential telephone service and which are used to subsidize basic residential service in the area.

(b) To receive the subsidy amounts from the local exchange service provider, the alternative telecommunications provider shall be required, to the extent possible, to obtain basic residential service subsidies from both the local exchange service provider and national universal service providers."]

SECTION 41. Section 269-16.92, Hawaii Revised Statutes, is repealed.

["~~[§269-16.92] Changes in subscriber carrier selections; prior authorization required; penalties for unauthorized changes.~~ ~~(a) No telecommunications carrier shall initiate a change in a subscriber's selection or designation of a long-distance carrier without first receiving:~~

~~(1)~~ ~~A letter of agency or letter of authorization;~~

~~(2)~~ ~~An electronic authorization by use of a toll-free number;~~

~~(3)~~ ~~An oral authorization verified by an independent third party; or~~

~~(4)~~ ~~Any other prescribed authorization;~~

provided that the letter or authorization shall be in accordance with verification procedures that are prescribed by the Federal Communications Commission or the public utilities commission. For purposes of this section, "telecommunications carrier" does not include a provider of commercial mobile radio service as defined by 47 United States Code section 332(d)(1).

(b) Upon a determination that any telecommunications carrier has engaged in conduct that is prohibited in subsection (a), the public utilities commission shall order the carrier to take corrective action as deemed necessary by the commission and may subject the telecommunications carrier to administrative penalties pursuant to section 269-28. Any proceeds from administrative penalties collected under this section shall be deposited into the public utilities commission special fund.

The commission, if consistent with the public interest, may suspend, restrict, or revoke the registration, charter, or certificate of the telecommunications carrier, thereby denying, modifying, or limiting the right of the telecommunications carrier to provide service in this State.

~~(c) The commission shall adopt rules, pursuant to chapter 91, necessary for the purposes of this section. The commission may notify customers of their rights under these rules.~~"]

SECTION 42. Section 269-16.95, Hawaii Revised Statutes, is repealed.

["~~§269-16.95 Emergency telephone service; capital costs; ratemaking.~~ (a) A public utility providing local exchange telecommunications services may recover the capital cost and associated operating expenses of providing a statewide enhanced 911 emergency telephone service in the public switched telephone network, through:

~~(1)~~ ~~A telephone line surcharge; or~~

~~(2)~~ ~~Its rate case.~~

(b) Notwithstanding the commission's rules on ratemaking, the commission shall expedite and give highest priority to any necessary ratemaking procedures related to providing a statewide enhanced 911 emergency telephone service; provided that the commission may set forth conditions and requirements as the commission determines are in the public interest.

(c) The commission shall require every public utility providing statewide enhanced 911 emergency telephone service to maintain a separate accounting of the costs of providing an enhanced 911 emergency service and the revenues received from related surcharges until the next general rate case. The commission shall further require that every public utility imposing a surcharge shall identify such as a separate line item on all customer billing statements.

(d) This section shall not preclude the commission from changing any rate, established pursuant to this section, either specifically or pursuant to any general restructuring of all telephone rates, charges, and classifications."]

SECTION 43. Section 269-34, Hawaii Revised Statutes, is repealed.

["~~[§269-34]~~ Obligations of telecommunications carriers. In accordance with conditions and guidelines established by the commission to facilitate the introduction of competition into the State's telecommunications marketplace, each telecommunications carrier, upon bona fide request, shall provide services or information services, on reasonable terms and conditions, to an entity seeking to provide intrastate telecommunications, including:

~~(1)~~ Interconnection to the telecommunications carrier's telecommunications facilities at any technically feasible and economically reasonable point within the telecommunications carrier's network so that the networks are fully interoperable;

~~(2)~~ ~~The current interstate tariff used as the access rate until the commission can adopt a new intrastate local service interconnection tariff pursuant to section 269-37;~~

~~(3)~~ Nondiscriminatory and equal access to any telecommunications carrier's telecommunications facilities, functions, and the information necessary to the transmission and routing of any telecommunications service and the interoperability of both carriers' networks;

~~(4)~~ Nondiscriminatory access among all telecommunications carriers, where technically feasible and economically reasonable, and where safety or the provision of existing electrical service is not at risk, to the poles, ducts, conduits, and rights-of-way owned or controlled by the telecommunications carrier, or the commission shall authorize access to electric utilities' poles as provided by the joint pole agreement, commission tariffs, rules, orders, or Federal Communications Commission rules and regulations;

~~(5)~~ ~~Nondiscriminatory access to the network functions of the telecommunications carrier's telecommunications network, that shall be offered on an unbundled, competitively neutral, and cost-based basis;~~

~~(6)~~ ~~Telecommunications services and network functions without unreasonable restrictions on the resale or sharing of those services and functions; and~~

~~(7)~~ Nondiscriminatory access of customers to the telecommunications carrier of their choice without the need to dial additional digits or access codes, where technically feasible. The commission shall determine the equitable distribution of costs among the authorized telecommunications carriers that will use such access and shall establish rules to ensure such access.

Where possible, telecommunications carriers shall enter into negotiations to agree on the provision of services or information services without requiring intervention by the commission; provided that any such agreement shall be subject to review by the commission to ensure compliance with the requirements of this section."]

SECTION 44. Section 269-35, Hawaii Revised Statutes, is repealed.

["~~[§269~~~~-35] Universal service. The commission shall preserve and advance universal service by:~~

~~(1)~~ ~~Maintaining affordable, just, and reasonable rates for basic residential service;~~

~~(2)~~ ~~Assisting individuals or entities who cannot afford the cost of or otherwise require assistance in obtaining or maintaining their basic service or equipment as determined by the commission; and~~

~~(3)~~ ~~Ensuring that consumers are given the information necessary to make informed choices among the alternative telecommunications providers and services.~~"]

SECTION 45. Section 269-36, Hawaii Revised Statutes, is repealed.

["~~[§269-36]~~ Telecommunications number portability. The commission shall ensure that telecommunications number portability within an exchange is available, upon request, as soon as technically feasible and economically reasonable. An impartial entity shall administer telecommunications numbering and make the numbers available on an equitable basis."]

SECTION 46. Section 269-37, Hawaii Revised Statutes, is repealed.

["~~[§269-37]~~ Compensation agreements. The commission shall ensure that telecommunications carriers are compensated on a fair basis for termination of telecommunications services on each other's networks, taking into account, among other things, reasonable and necessary costs to each telecommunications carrier of providing the services in question. Telecommunications carriers may negotiate compensation arrangements, that may include "bill and keep", mutual and equal compensation, or any other reasonable division of revenues pending tariff access rates to be set by the commission. Upon failure of the negotiations, the commission shall determine the proper methodology and amount of compensation."]

SECTION 47. Section 269-38, Hawaii Revised Statutes, is repealed.

["~~[§269~~-38] Regulatory flexibility for effectively competitive services. The commission may allow telecommunications carriers to have pricing flexibility for services that the commission finds are effectively competitive; provided that the rates for:

~~(1)~~ ~~Basic telephone service and for services that are not effectively competitive are cost-based and remain just, reasonable, and nondiscriminatory; and~~

~~(2)~~ ~~Universal service is preserved and advanced.~~"]

SECTION 48. Section 269-39, Hawaii Revised Statutes, is repealed.

["~~[§269-39]~~ Cross-subsidies. (a) The commission shall ensure that noncompetitive services shall not cross-subsidize competitive services. Cross-subsidization shall be deemed to have occurred:

~~(1)~~ ~~If any competitive service is priced below the total service long-run incremental cost of providing the service as determined by the commission in subsection (b); or~~

~~(2)~~ ~~If competitive services, taken as a whole, fail to cover their direct and allocated joint and common costs as determined by the commission.~~

(b) The commission shall determine the methodology and frequency with which providers calculate total service long-run incremental cost and fully allocated joint and common costs. The total service long-run incremental cost of a service shall include an imputation of an amount equal to the contribution that the telecommunications carrier receives from noncompetitive inputs used by alternative providers in providing the same or equivalent service."]

SECTION 49. Section 269-40, Hawaii Revised Statutes, is repealed.

["~~[§269-40]~~ Access to advanced services. The commission shall ensure that all consumers are provided with nondiscriminatory, reasonable, and equitable access to high quality telecommunications network facilities and capabilities that provide subscribers with sufficient network capacity to access information services that provide a combination of voice, data, image, and video, and that are available at just, reasonable, and nondiscriminatory rates that are based on reasonably identifiable costs of providing the services."]

SECTION 50. Section 269-41, Hawaii Revised Statutes, is repealed.

["~~[§269-41]~~ Universal service program; establishment; purpose; principles. There is established the universal service program. The purpose of this program is to:

~~(1)~~ ~~Maintain affordable, just, and reasonable rates for basic residential telecommunications service, as defined by the commission;~~

~~(2)~~ Assist customers located in the areas of the State that have high costs of essential telecommunications service, low-income customers, and customers with disabilities, in obtaining and maintaining access to a basic set of essential telecommunications services as determined by the commission. The commission may expand or otherwise modify relevant programs, such as the lifeline program under section 269-16.5;

~~(3)~~ Ensure that consumers in all communities are provided with access, at reasonably comparable rates, to all telecommunications services which are used by a majority of consumers located in metropolitan areas of the State. The commission shall provide for a reasonable transition period to support the statewide deployment of these advanced telecommunications services, including, but not limited to, the use of strategic community access points in public facilities such as education, library, and health care facilities;

~~(4)~~ ~~Ensure that consumers are given the information necessary to make informed choices among the alternative telecommunications carriers and services; and~~

~~(5)~~ ~~Promote affordable access throughout the State to enhanced government information and services, including education, health care, public safety, and other government services.~~

~~The commission shall administer the universal service program, including the establishment of criteria by which the purposes of the program are met.~~"]

SECTION 51. Section 269-42, Hawaii Revised Statutes, is repealed.

["~~§269-42~~ Universal service program; contributions. (a) There is established outside of the state treasury a special fund to be known as the universal service fund to be administered by the commission to implement the policies and goals of universal service. The fund shall consist of contributions from the sources identified in subsections (e) and (f). Interest earned from the balance of the fund shall become a part of the fund. The commission shall adopt rules regarding the distribution of moneys from the fund including reimbursements to carriers for providing reduced rates to low-income, elderly, residents of underserved or rural areas, or other subscribers, as authorized by the commission.

~~(b) The commission may allow distribution of funds directly to customers based upon a need criteria established by the commission.~~

(c) A telecommunications carrier or other person contributing to the universal service program may establish a surcharge which is clearly identified and explained on customers' bills to collect from customers contributions required under this section.

(d) Telecommunications carriers may compete to provide services to underserved areas using funds from the universal service program. For the purposes of this section, "underserved areas" means those areas in the State that lack or have very limited access to high capacity, advanced telecommunications networks and information services, including access to cable television.

(e) The commission shall require all telecommunications carriers to contribute to the universal service program. The commission may require a person other than a telecommunications carrier to contribute to the universal service program if, after notice and opportunity for hearing, the commission determines that the person is offering a commercial service in the State that directly benefits from the telecommunications infrastructure, and that directly competes with a telecommunications service provided in the State for which a contribution is required under this subsection.

(f) The commission shall designate the method by which the contributions under subsection (e) shall be calculated and collected. The commission shall consider basing contributions solely on the gross operating revenues from the retail provision of intrastate telecommunications services offered by the telecommunications carriers subject to the contribution."]

SECTION 52. Section 269-43, Hawaii Revised Statutes, is repealed.

["~~[§269-43]~~ Carriers of last resort. (a) The commission may define and designate local exchange service areas where the commission has determined that providing universal service funds to a single provider will be the most appropriate way to ensure service for these areas.

(b) The commission shall determine the level of service that is appropriate for each designated local exchange service area and shall invite telecommunications providers to bid for a level of service that is appropriate. The successful bidder shall be designated the carrier of last resort for the designated local exchange service area for a period of time and upon conditions set by the commission. In determining the successful bidder, the commission shall take into consideration the level of service to be provided, the investment commitment, and the length of the agreement, in addition to the other qualifications of the bidder.

~~(c) The universal service fund shall also provide service drops and basic service at discounted rates to public institutions, as stated in section 269-41.~~

~~(d) The commission shall adopt rules pursuant to chapter 91 to carry out the provisions of this section.~~"]

SECTION 53. Chapter 440G, Hawaii Revised Statutes, is repealed.

SECTION 54. All rules, policies, procedures, orders, certificates of public convenience and necessity, franchises, guidelines, and other material adopted, issued, or developed by the department of commerce and consumer affairs and the public utilities commission to implement provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the Hawaii broadband commissioner by this Act, shall remain in full force and effect until amended or repealed by the Hawaii broadband commissioner. In the interim, every reference to the department of commerce and consumer affairs, director of commerce and consumer affairs, public utilities commission, or chairperson of the public utilities commission in those rules, policies, procedures, orders, franchises, guidelines, and other material is amended to refer to the Hawaii broadband commissioner as appropriate.

SECTION 55. All deeds, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the department of commerce and consumer affairs and the public utilities commission pursuant to the provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the Hawaii broadband commissioner by this Act, shall remain in full force and effect. Effective upon approval of this Act, every reference to the department of commerce and consumer affairs, director of commerce and consumer affairs, public utilities commission, or chairperson of the public utilities commission therein shall be construed as a reference to the Hawaii broadband commissioner as appropriate.

SECTION 56. During fiscal year 2009-2010, fifty per cent of the moneys collected by the public utilities commission from telecommunications carriers and deposited into the public utilities commission special fund shall be deposited into the commissioner special fund to provide appropriations for the new commissioner.

The unencumbered balance existing on June 30, 2009, in the cable television division subaccount in the compliance resolution fund shall be deposited into the commissioner special fund to provide appropriations for the new commissioner.

SECTION 57. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of commerce and consumer affairs and the public utilities commission relating to the functions transferred to the Hawaii broadband commissioner shall be transferred with the functions to which they relate.

SECTION 58. (a) The department of commerce and consumer affairs shall transfer all four positions from the cable television division to the service of the Hawaii broadband commissioner; provided that:

(1) Employees who occupy civil service positions and whose functions are transferred by this Act shall not suffer any loss of salary, seniority, prior service credits, any vacation and sick leave credits previously earned, or other rights, benefits, and privileges under the State's personnel laws. Employees who have permanent civil service status shall retain their civil service status and shall be transferred to similar or corresponding positions in the Hawaii broadband commissioner, subject to the State's personnel laws and this Act;

(2) Employees who, prior to this Act, are exempt from civil service and are transferred by this Act shall not suffer any loss of prior service credits, any vacation and sick leave credits previously earned, or other rights, benefits, and privileges under the State's personnel laws. The Hawaii broadband commissioner shall prescribe the qualifications and duties of such employees and fix their salaries without regard to chapter 76; and

(3) Employees, whose functions are transferred by this Act, shall be transferred with their functions and shall continue to perform their regular duties subject to the State's personnel laws and this Act.

(b) There shall be up to ten new temporary exempt positions established in the Hawaii broadband commissioner to assist the commissioner in carrying out the provisions of this Act. These positions shall be funded from the commissioner special fund and may be filled without regard to chapter 76.

SECTION 59. The Hawaii broadband commissioner shall convene a work group to develop procedures for streamlined permitting functions that are applicable to the development of broadband services and broadband technology which are normally available to state and local governments for the use or development of broadband service or broadband technology. Members of the work group shall include:

(1) The Hawaii broadband commissioner established in section 3 of this Act;

(2) The mayor of the county of Hawaii, or the mayor's designee;

(3) The mayor of the city and county of Honolulu, or the mayor's designee;

(4) The mayor of the county of Kauai, or the mayor's designee;

(5) The mayor of the county of Maui, or the mayor's designee;

(6) The chairperson of the Hawaii broadband task force established by Act 2, First Special Session Laws of Hawaii 2007; and

(7) Two representatives of state agencies with jurisdiction over land use and permitting at the state level.

SECTION 60. The work group established under section 59 shall submit to the legislature no later than January 1, 2010, a report with its recommended procedures for streamlining and expediting all permitting functions normally available to state and local governments for the use or development of broadband service or broadband technology. The procedures shall be consistent across all counties and shall provide that any permitting fees and revenues traditionally accruing to the counties that relate to the use or development of broadband service or broadband technology will continue to accrue to the counties once the procedures go into effect.

SECTION 61. The legislative reference bureau shall review all relevant laws in the Hawaii Revised Statutes relating to broadband technology, telecommunications, infrastructure development, permitting requirements, and any other issues the legislative reference bureau deems appropriate, including all acts passed by the legislature during this regular session of 2009, whether enacted before or after the effective date of this Act, unless such acts specifically provide that this Act is being amended, and make recommendations on how these laws may be amended to conform to this Act or facilitate the implementation of this Act. The legislative reference bureau shall submit a report of its findings and recommendations, including proposed legislation, to the legislature not later than twenty days prior to the convening of the 2010 regular session.

SECTION 62. There is appropriated out of the federal funds subaccount of the commissioner special fund the sum of $1 or so much thereof as may be necessary for fiscal year 2008-2009 and the sum of $1 or so much thereof as may be necessary for fiscal year 2009-2010 to purchase broadband facilities, services, or equipment or to fund broadband-related infrastructure projects pursuant to this Act.

The sums appropriated shall be expended by the Hawaii broadband commissioner for the purposes of this Act.

SECTION 63. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 64. This Act shall take effect on July 1, 2050, to promote further discussion on various segments of this Act; provided that any decision or order executed by the public utilities commission prior to the enactment of this Act shall remain in full force and effect until such time as the Hawaii broadband commissioner may amend or repeal the decision or order under the Hawaii broadband commissioner's jurisdiction.