Bill Text: HI SB2786 | 2012 | Regular Session | Introduced
Bill Title: Regulation of Telecommunications and Cable Television Services
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-02-14 - (S) The committee on CPN deferred the measure. [SB2786 Detail]
Download: Hawaii-2012-SB2786-Introduced.html
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THE SENATE |
S.B. NO. |
2786 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE REGULATION OF TELECOMMUNICATIONS AND CABLE TELEVISION SERVICES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The State of Hawaii recognizes that advanced broadband capability is essential infrastructure required to drive innovation, the economy, and job creation in the twenty-first century as the telephone, interstate highways, and air travel did in the twentieth 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 State of Hawaii 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 by these infrastructures are converging. In order to position Hawaii for global competitiveness in the twenty-first century, this Act promotes the following goals:
(1) Development of broadband infrastructure to ensure ubiquitous access to world-class broadband service at affordable prices throughout the State;
(2) Competition in the telecommunications marketplace to reduce prices, increase service penetration, and improve service to all persons in the State;
(3) A modern regulatory and permitting environment that supports and advances investment in broadband infrastructure and provision of broadband services for the public; and
(4) Increased, flexible, timely, and responsible access to public rights-of-way and public facilities for broadband service providers to encourage broadband infrastructure investment and deployment.
This Act creates a new communications division within the department of commerce and consumer affairs ("division") to be headed by a communications commissioner ("commissioner") and tasks the commissioner with investigating, promoting, and ensuring the growth and development of broadband infrastructure within the State in accordance with these goals. The commissioner shall "champion" the interests of the State's broadband, telecommunications, and video programming services before the federal government, including Congress; the executive branch; the Federal Communications Commission; and state and local agencies, including the governor, the state legislature, and county governments. The commissioner shall also 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.
The commissioner shall:
(1) Develop state policies relating to the provision of broadband services and interstate and international communications services and facilities serving or transiting the State of Hawaii;
(2) Work with other governmental entities to investigate measures including standardization, consolidation, and coordination that can be taken to streamline and expedite permitting and approval processes for the construction of additional broadband infrastructure; and
(3) Develop and implement initiatives and programs to construct or otherwise make available additional infrastructure for the provision of broadband services, and the sharing of such infrastructure by competing providers of broadband services to the public.
This Act also consolidates the regulation of telecommunications carriers and cable operators in the State in the division under the commissioner. In doing so, the Act creates a "one stop shop" to assist businesses providing broadband, telecommunications, and video programming services, and expediting the process for them to make their services rapidly available to the public. Consolidating and streamlining the State's regulatory processes for the telecommunications sector in the State will help facilitate the construction of telecommunications and broadband infrastructure and the introduction, penetration, and capability of advanced broadband services.
The public utilities commission currently regulates telecommunications carriers pursuant to chapter 269, and the director of commerce and consumer affairs currently regulates cable operators pursuant to chapter 440G of the Hawaii Revised Statutes.
This Act combines the telecommunications provisions from chapter 269 and all of chapter 440G of the Hawaii Revised Statutes into a new chapter so that both telecommunications carriers and cable operators would be subject to regulation by the commissioner.
This Act also provides for transitional provisions that assure that there is no gap in regulatory authority caused by the transition, and provides that prospectively the commissioner may take appropriate action to change existing rules, decisions, and other determinations. Finally, this Act proposes conforming amendments to other chapters of the Hawaii Revised Statutes.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"CHAPTER
TELECOMMUNICATIONS AND CABLE TELEVISION SERVICES
PART I. COMMUNICATIONS DIVISION, GENERALLY
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
"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 or any public, educational, or governmental activity.
"Access organization" means any nonprofit organization designated by the commissioner to oversee the development, operation, supervision, management, production, or cablecasting of programs for any channels obtained under section -61, and to provide public, educational, or governmental access services.
"Access organization assets" means all public, educational, or governmental access facilities, equipment, property, financial assets and instruments, buildings, land, and all other tangible or intangible assets acquired or purchased by an access organization from funds provided to the access organization under a cable franchise or order of the director prior to July 1, 2012, or the commissioner beginning July 1, 2012.
"Applicant" means a person who files an application, petition, or proposal with the division.
"Application" means an unsolicited filing.
"Basic cable service" means any service tier which includes the retransmission of local television broadcast signals.
"Broadband" means an "always on" service that combines computer processing capabilities, information provision, and computing interactivity with data transport, enabling 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 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) Owned, operated, or otherwise controlled by 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.
"Commissioner" means the communications commissioner of the communications division of the department of commerce and consumer affairs.
"Consumer advocate" means the executive director of the division of consumer advocacy appointed by the director pursuant to section 269-51, acting in the capacity of consumer advocate.
"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.
"Division" means the communications division of the department of commerce and consumer affairs.
"Facility" includes all real property, antenna, poles, supporting structures, wires, cables, conduits, amplifiers, instruments, appliances, fixtures, and other personal property used by a cable operator or telecommunications carrier to provide service.
"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, corporation, partnership, association, limited liability company, any other form of business entity, trust, or governmental agency.
"Proposal" means a filing solicited by the commissioner.
"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 or for which a telecommunications carrier is authorized to provide telecommunications service.
"Telecommunications" means the transmission, between or among points specified by a user, of information of the user's choosing, without change in the form or content of the information as sent and received.
"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.
"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.
"Telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
"Video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
§ -2 Communications division. The communications division is established within the department of commerce and consumer affairs.
§ -3 Communications commissioner. (a) The director, with the approval of the governor, shall appoint the communications commissioner. The commissioner shall be responsible for the performance of the duties imposed upon the commissioner or the division as specified in this chapter. The commissioner, who shall not be subject to chapter 76, may be removed by the director with the approval of the governor.
(b) The salary of the commissioner shall be _________.
§ -4 Deputy commissioner. The commissioner may appoint a deputy commissioner, who shall not be subject to chapter 76. The deputy commissioner shall have the power to perform any act or duty assigned by the commissioner, and shall serve as the commissioner if, for any reason, the commissioner is unable to perform the duties of commissioner.
§ -5 Employment of assistants, personnel. (a) The commissioner may appoint and employ office assistants, agents, engineers, accountants, and other personnel, with or without regard to chapter 76.
(b) The commissioner may employ telecommunications analysts who shall not be subject to chapter 76.
(c) The commissioner may appoint hearings officers as may be necessary, who shall not be subject to chapter 76.
(d) The commissioner may appoint one or more attorneys independent of the attorney general who shall act as attorneys for the division and who shall not be subject to chapter 76. The commissioner shall define their powers and duties and fix their compensation.
§ -6 General powers and duties. (a) The commissioner shall have the authority expressly conferred by, or reasonably implied from, the provisions of this chapter.
(b) The commissioner shall have general regulatory supervision over all telecommunications carriers and cable operators, and shall perform the duties and exercise the powers imposed or conferred by this chapter.
(c) The commissioner shall have the authority to adopt rules pursuant to chapter 91 necessary to effectuate the purposes of this chapter.
(d) Subject to consultation with the public utilities commission, the commissioner shall have authority over electric utilities to the extent necessary to mandate and regulate access by telecommunications carriers and cable operators to the poles of electric utilities.
§ -7 Communications development duties. (a) The commissioner shall strive to ensure that all consumers are provided with nondiscriminatory, reasonable, and equitable access to high quality network facilities and services that provide subscribers with sufficient network capacity to access services that provide a combination of voice, data, image, cable, and video, and that are available at just, reasonable, and nondiscriminatory rates.
(b) No later than July 1, 2014, the commissioner shall study and develop a comprehensive policy to further the deployment of broadband services, 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 commissioner shall regularly update and revise such studies and findings in order to ensure that the State's policies and initiatives effectively promote the interests of the State.
(c) The commissioner shall develop programs and initiatives to encourage and facilitate the deployment of broadband services and access to those services by users in the State. The commissioner shall fund these programs and initiatives using funds collected pursuant to section -21 and deposited in the communications special fund pursuant to section -20. In addition, 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 communications related matters of the State. The commissioner shall advocate the broadband, telecommunications, and video programming distribution interests of the State 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 active working relationships with community groups, civic associations, industry trade associations, industry leaders, and other stakeholders to communicate the interests and concerns of the State.
(e) The commissioner shall promote and encourage use of telework alternatives for public and private employees, including appropriate policy and legislative initiatives.
(f) The commissioner shall advise and assist state agencies, and upon request of the counties, advise and assist the counties, in planning, developing, and administering programs, projects, plans, policies, and other activities to promote telecommuting by state and county employees.
(g) The commissioner shall support the efforts of both public and private entities in the State to enhance or facilitate the deployment of, and access to, competitively priced, advanced electronic communications services, including broadband and its products and services and internet access services of general application throughout the State.
(h) The commissioner shall make recommendations to establish affordable, accessible broadband services to unserved and underserved areas in the State and monitor advancements in communications that will facilitate this goal.
(i) The commissioner shall advocate for, and facilitate the development and deployment of, expanded broadband applications, programs, and services, including telework, telemedicine, and e-learning, that will bolster the usage of and demand for broadband-level telecommunications.
(j) The commissioner shall serve as a broadband information and applications clearinghouse for the State and coordinate broadband-related services and programs under the federal American Recovery and Reinvestment Act of 2009.
(k) The commissioner shall promote, advocate, and facilitate the implementation of the findings and recommendations of the Hawaii broadband task force established by Act 2, First Special Session Laws of Hawaii 2007.
§ -8 Communications infrastructure permitting. The commissioner shall investigate measures that could streamline and expedite the permitting and approval processes that are imposed by governmental entities with respect to the construction of infrastructure intended for use in the provision of broadband services to the public. The commissioner shall also investigate the possibility of assuming all or a portion of the duties and authority to issue permits and approvals for the construction of broadband infrastructure. The commissioner may assume such duties and authorities and shall carry them out in accordance with any statutes or rules applicable to such duties and authorities; provided that the assumption of such duties and authorities is deemed by the commissioner to be appropriate and efficient, such duties and authorities can be delegated by the relevant governmental entities, and the relevant governmental entities approve.
§ -9 Investigative powers. (a) The commissioner shall have the power to examine:
(1) The condition of each telecommunications carrier and cable operator;
(2) The manner in which each telecommunications carrier and cable operator is operated with reference to the safety or accommodation of the public;
(3) The safety, working hours, and wages of its employees of each telecommunications carrier and cable operator;
(4) The services provided by telecommunications carriers and cable operators, and the steps being taken to provide those services;
(5) The value of the physical property of each telecommunications carrier and cable operator;
(6) The issuance by each telecommunications carrier and cable operator of stocks and bonds, and the disposition of the proceeds thereof;
(7) The amount and disposition of income of each telecommunications carrier and cable operator, and all financial transactions of each telecommunications carrier and cable operator;
(8) The business relations of each telecommunications carrier and cable operator, with other persons;
(9) Compliance by each telecommunications carrier and cable operator, 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 and cable operator, and the public or any other persons.
(b) Beginning July 1, 2013, the commissioner may investigate any person acting in the capacity of or engaging in the business of a telecommunications carrier within the State without having a certificate of public convenience and necessity, certificate of authority or certificate of registration, or other authority previously obtained under and in compliance with this chapter or chapter 269, or the rules adopted under this chapter or chapter 269.
(c) The commissioner may investigate any person acting in the capacity of or engaging in the business of a cable operator within the State without having a franchise or other authority previously obtained under and in compliance with this chapter, or the rules adopted under this chapter.
(d) The commissioner may initiate an investigation concerning a possible violation of this chapter, or to ascertain the conditions of the broadband, telecommunications, or cable industries in the State, or for any other reason determined by the commissioner to be necessary or appropriate to carry out the requirements of this chapter. The commissioner shall also initiate an investigation when requested by the telecommunications carrier, the cable operator, or any person upon a sworn written complaint to the commissioner, setting forth any prima facie cause of complaint.
§ -10 Delegation of powers. Any power, duty, or function vested in the commissioner by this chapter may be exercised, discharged, or performed by any employee of the division employed pursuant to section -5(a), (b), or (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 -5(c) or (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. (a) The commissioner shall prepare and present to the governor, through the director, an annual report describing the commissioner's actions during the preceding fiscal year. Copies of the report shall be furnished by the governor to the legislature no later than twenty days prior to the convening of each regular session. The 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; together with the commissioner's recommendations regarding legislation and other matters requiring executive and legislative consideration;
(8) The department's efforts to use broadband and its products and services to develop and expand telework initiatives, including telework participation levels and trends of both private and public sector employees in the State;
(9) The receipt and expenditure of federal moneys from the American Recovery and Reinvestment Act of 2009 and other federal sources for the purposes of purchasing broadband facilities, services, or equipment or for entering into contracts for broadband-related projects by all State agencies; and
(10) Any other matters deemed necessary by the commissioner, director, or governor.
(b) The commissioner shall establish and maintain a register of all of the division's orders, decisions, and contracts, which shall be available for public inspection.
§ -12 Commissioner's power to subpoena; contempt proceedings. (a) The commissioner, either on the commissioner's own behalf or on behalf of any interested party, may take depositions, and subpoena witnesses or documentary evidence relative to the subject of any hearing or investigation conducted by the commissioner. The commissioner may administer oaths, and examine under oath any individual relative to the affairs of any person being examined, or relative to the subject of any hearing or investigation conducted by the commissioner.
(b) The subpoena shall have the same force and effect and shall be served in the same manner as if issued from a court of record.
(c) Witness fees and mileage, if claimed, shall be allowed the same as for testimony in a court of record. Witness fees, mileage, and the actual expense necessarily incurred in securing attendance of witnesses and their testimony shall be itemized, and shall be paid by the person as to whom the examination is being made, or by the person if other than the commissioner, at whose request the hearing is held.
(d) The commissioner shall pay to a financial institution that is served a subpoena issued under this section a fee for reimbursement of the costs that are necessary and that have been directly incurred in searching for, reproducing, or transporting books, papers, documents, or other objects designated by the subpoena. Reimbursement shall be paid at a rate not to exceed the rate set forth in section 28-2.5(d).
(e) If any individual fails to obey the subpoena, or obeys the subpoena but refuses to testify when required concerning any matter under examination or investigation, or the subject of the hearing, the commissioner shall file a written report thereof and proof of service of the commissioner's subpoena in the circuit court of the county where the examination, investigation, or hearing is being conducted. Thereupon, the court shall forthwith cause the individual to be brought before it to show cause why the individual should not be held in contempt. If the court holds the individual in contempt, the court may punish the individual as if the failure or refusal related to a subpoena from or testimony in that court.
§ -13 Notices. (a) Whenever an investigation is undertaken and a hearing is scheduled by the commissioner, reasonable notice in writing of the hearing and of the subject or subjects to be investigated shall be given to the telecommunications carrier, cable operator, access organization, or persons concerned. If the investigation is based upon complaints made to the commissioner as prescribed in section -9(d), 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 complainant and the telecommunications carrier, cable operator, persons concerned, or other respondent not less than fourteen calendar days before the date designated for the hearing.
(b) Any notice provided pursuant to section -38(f), 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 provided by filing the notice with the commissioner and making it available for public inspection.
(c) Any public hearing held pursuant to section -38(f), 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 be held, shall be given not less than once in each of three weeks in the affected county or counties, 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 seven calendar days 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, access organization, persons concerned, and any complainant 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, access organization, or person is violating or failing to comply with any provision of this chapter or of any rule, order, or other requirement of the commissioner, or of any provisions of the affected party's certificate of public convenience and necessity, certificate of authority, certificate of registration, franchise, charter, contract, or articles of association, if any; or that changes, additions, extensions, or repairs are desirable in the affected party's 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 the affected party is doing what it ought not to do, or not doing what it ought to do, the commissioner shall in writing inform the affected party and may institute proceedings as may be necessary to require the affected party to correct any such deficiency. The commissioner may by order direct the consumer advocate to appear in such proceeding, to carry out the purposes of this section. The commissioner may conduct an examination into any of the matters referred to in section -9, notwithstanding any concurrent 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 such court or other body. The commissioner may also revoke or amend any provision of a certificate of public convenience and necessity, certificate of authority, certificate of registration, franchise, charter, or articles of association, or contract, if any, pursuant to section -31 or -69.
(b) In addition to any other remedy available, the commissioner 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, certificate of authority, certificate of registration, franchise, or other authority previously obtained under and in compliance with this chapter or the rules adopted thereunder.
(1) Any citation issued under this section may contain an order of abatement and an assessment of civil penalties as provided in section -24. All penalties collected under this subsection shall be deposited in the communications special fund created in section -20. Service of a citation issued under this subsection shall be made by personal service whenever possible, or by certified mail, return receipt requested, 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 calendar 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 conduct the hearing.
(3) If the person cited under this subsection does not submit a written request to the commissioner for a hearing within twenty calendar 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 pursuant to this subsection, including but not limited to the provisions for abatement and civil penalties imposed. In any proceeding to enforce the provisions of the final order of the commissioner, the commissioner need only show that the notice was given, a hearing was held or the time granted for requesting the hearing has run without such a request, and a certified copy of the final order of the commissioner.
(4) If any party is aggrieved by the decision of the commissioner or the designated hearings officer, the party may appeal to the state intermediate appellate court, subject to chapter 602, in the manner provided for civil appeals from the circuit court; 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 the order, if the order is final, 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 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 access organizations to furnish information. (a) Every telecommunications carrier, cable operator, 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 the affected party's books, records, contracts, maps, and other documents related to its operations in or affecting the State by the commissioner, or any person authorized by the commissioner in writing to make such examination, and shall furnish the commissioner with a complete inventory of property under the affected party's control or management in or affecting the State in such form as the commissioner may direct. The affected party may request in writing that confidential commercial and business information and data that the commissioner requires to be produced be treated and protected as confidential by the commissioner. The affected party shall designate and separate the information claimed to be confidential, and shall submit a separate statement providing the reasons and authority for the request for confidential treatment. Upon a showing satisfactory to the commissioner, the information, or a particular part thereof, shall be protected from public disclosure to the extent permitted by chapter 92F.
(b) The commissioner shall conduct a management audit of the access organizations designated under this part, every three years or sooner as determined by the commissioner to be appropriate. The commissioner shall require the access organizations designated under this part to submit annual audited financial statements to the commissioner unless determined otherwise by the commissioner for good cause.
§ -20 Communications special fund. (a) There is established in the state treasury a communications special fund to be administered by the division and expended to carry out the duties and obligations of the division under this chapter. All revenues, fees, penalties, and fines collected by the commissioner shall be deposited into the communications special fund. On a quarterly basis, an amount not to exceed thirty per cent of the fees derived under section -21 and any penalties and fines collected by the commissioner remaining in the fund after the deduction for central services expenses shall be allocated to the division of consumer advocacy and deposited in the compliance resolution fund established pursuant to section 26-9(o); provided that all moneys allocated by the commissioner from the fund to the division of consumer advocacy shall be in accordance with legislative appropriations.
(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 communications special fund including, but not limited to, all moneys received and collected by the commissioner pursuant to sections -21, -24, 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.
§ -21 Finances; regulatory fee. (a) There shall be paid to the commissioner in each of 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 one-fourth of one per cent of the gross income from the telecommunications carrier's business in the State 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 communications special fund created pursuant to section -20.
(b) Each telecommunications carrier paying a fee under subsection (a) may impose a surcharge to consumers to recover the amount paid above one-eighth of one per cent of its gross income in the State. 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 at least thirty calendar days' written notice to the commissioner.
§ -22 Consumer advocate. (a) The consumer advocate shall serve as the consumer advocate in all hearings and proceedings before the commissioner.
(b) The consumer advocate shall represent, protect, and advance the interests of all consumers, including small businesses, of telecommunications carriers and cable operators. The responsibility for advocating the interests of the consumers of telecommunications carriers and cable operators shall be separate and distinct from the responsibilities of the communications division and those assistants employed by the division. The consumer advocate shall have full rights to participate as a party in interest in all proceedings before the communications division, including proceedings initiated pursuant to section -15.
(c) The consumer advocate shall counsel the customers of telecommunications carriers and cable operators in the handling of consumer complaints before the communications division. The communications division shall provide a central clearinghouse of information by collecting and compiling all consumer complaints and inquiries concerning telecommunications carriers and cable operators.
(d) Whenever it appears to the consumer advocate that:
(1) Any telecommunications carrier or cable operator has violated or failed to comply with any provision of this chapter or of any state or federal law;
(2) Any telecommunications carrier or cable operator has failed to comply with any rule, regulation, or other requirement of the commissioner, or of any other state or federal agency;
(3) Any telecommunications carrier or cable operator has failed to comply with any provision of its franchise, certificate of public convenience and necessity, certificate of authority, or certificate of registration;
(4) Changes, additions, extensions, or repairs to the plant or service of any 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 telecommunications carrier or cable operator are unreasonable or unreasonably discriminatory;
the consumer advocate may institute proceedings for appropriate relief before the communications division. 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 communications division and serve on any telecommunications carrier or cable operator a request in writing to furnish any information reasonably relevant to any matter or proceeding before the communications division 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 telecommunications carrier or cable operator shall comply with such request within the time limit set forth by the consumer advocate unless within ten calendar days following service it requests a hearing on the matter before the communications division and states its reasons therefor. If a hearing is requested, the communications division shall proceed to hold the hearing and make its determination on the request within thirty calendar days after the same is filed. The consumer advocate, telecommunications carrier, or cable operator may appeal the decision of the commissioner, in the manner provided for in section -16. Subject to the foregoing, such requests may ask the telecommunications carrier or cable operator to:
(1) Furnish any information with which the consumer advocate may require concerning the condition, operations, practices, or services of the 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 telecommunications carrier or cable operator; or
(3) Permit entry upon land or other property in the possession or control of the telecommunications carrier or cable operator for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object thereon.
§ -23 Cable advisory committee. There is established the cable advisory committee. The committee shall consist of five members appointed by the governor as provided in section 26-34. The committee shall advise the commissioner, cable operators, and access organizations on matters within the jurisdiction of this chapter at the request of the commissioner or cable operator or access organization. The committee shall advise the commissioner on matters relating to any decision to designate, modify, or rescind a designation of a access organization or the requirements therefore, as provided in this chapter. The members of the committee shall serve without pay but shall be entitled to reimbursement for necessary expenses while attending meetings and while in discharge of their duties.
§ -24 Penalties. (a) Any telecommunications carrier, cable operator, or access organization violating 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 acts specified in section -69 for cable operators, shall be subject to a civil penalty not to exceed:
(1) For telecommunications carriers and cable operators, $25,000 for each day the violation, neglect, or failure continues; and
(2) For access organizations, $2,500 for each day the violation, neglect, or failure continues;
which shall be assessed by the commissioner after a hearing in accordance with chapter 91. The commissioner may order any offender to cease carrying on its business while the violation, neglect, or failure continues.
(b) Notwithstanding the provisions of 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, certificate of authority, certificate of registration, 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 such offense, and, in the case of a continuing violation, $5,000 for each day the uncertified or unfranchised activity continues.
(c) Upon written application filed within fifteen calendar days after service of an order imposing a civil penalty pursuant to this section, the commissioner may suspend or decrease the penalty upon terms as it deems proper.
(d) If any civil penalty imposed pursuant to this section is not paid within such period as the commissioner may direct, the attorney general may 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 access organization is responsible for under this chapter.
PART II. TELECOMMUNICATIONS
§ -31 Certificate of public convenience and necessity; certificate of authority; certificate of registration. (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, certificate of authority, or certificate of registration. Further, before substantially altering, modifying, or changing the nature or scope of authorized telecommunications service under its existing certificate, or expanding the nature or scope of service of telecommunications services beyond the existing certificate, a telecommunications carrier shall file a separate application for the proposed, modified, or new service. Applications for certificates shall be made in writing to the commissioner and shall comply with the requirements prescribed in the commissioner's rules.
(1) An application for a certificate of authority, certification of registration, or certification of public convenience and necessity shall include:
(A) The type of service to be performed;
(B) The geographical scope of the operation;
(C) The type of equipment to be employed in the service;
(D) A statement of the applicant's financial ability to render the proposed service;
(E) A copy of the most recent audited financial statement of the applicant and if more than three months have elapsed since the date of the most recent audited financial statement, a current, unaudited financial statement; and
(F) The rates or charges proposed to be charged including the rules governing the proposed service.
(2) Where exempted by federal law from entry and price regulation by the State, a telecommunications carrier seeking to offer, initiate, or provide intrastate telecommunications service shall apply for a certificate of registration with the division by complying with subparagraphs (A) to (C) and (F).
(b) A certificate shall be issued to any qualified applicant, authorizing all 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 service proposed 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 services 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 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, 2012, holds an unexpired certificate of public convenience and necessity, certificate of authority, certificate of registration, franchise, or charter enacted or granted by the legislative or executive authority of the State or its predecessor governments, or that has a bona fide operation as a telecommunications carrier recognized by the public utilities commission, shall be required to obtain a new certificate 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 whole or in part, 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 related to its operations in or affecting the State as the commissioner may determine are necessary to effectively regulate the telecommunications carrier, that upon request of the commissioner, shall be made accessible within a time frame determined by the commissioner; provided that the original copies shall be made available when requested by the commissioner.
§ -33 Annual financial reports. All annual financial reports 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 provider 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 need for the exemption as a result of 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 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;
(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;
(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 such period and under such conditions and limitations as it deems appropriate.
(d) The commissioner may require a telecommunications provider to apply for a certificate of public convenience and necessity, certificate of authority, or certificate of registration pursuant to section -31; provided that the commissioner may waive any application requirement whenever the commissioner 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 providers when the commissioner 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 the termination 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 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 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 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 commissioner, 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 commissioner should not authorize an alternative telecommunications provider 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. (a) Consistent with federal law and 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 but not limited to:
(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, division tariffs, rules, or orders, and consistent with the requirements established by the 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; provided that 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 such access.
(b) 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. (a) 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.
(b) 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, which may include bill and keep arrangements.
§ -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 carriers in such manner as the commissioner may require, and copies shall be furnished to any person on request.
(b) The commissioner may issue an order imposing alternative rate regulation procedures.
(c) Notwithstanding section -34, or any other law to the contrary, the commissioner shall treat retail intrastate telecommunications services, under the commissioner's classification of services relating to costs, rates, and pricing, as fully competitive and apply all rules of the division in accordance with that designation. In addition, a 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 a telecommunications carrier, except upon receiving the approval of the commissioner, shall not charge a higher rate for any retail telecommunications service than the rate for the same service included in the filed tariff of the telecommunications carrier. All rates, fares, charges, and bundled service offerings shall be filed with the commissioner for information purposes only.
This subsection shall apply to retail rates charged for service to end user consumers only and shall not apply to wholesale rates charged for services provided by a telecommunications carrier to another telecommunications provider, a wireless communications provider, a voice over internet protocol communications provider, or other similar communications provider.
Nothing herein shall modify any requirements of a telecommunications carrier to provide lifeline telephone service, comply with carrier of last resort obligations, or comply with applicable service quality standards.
(d) The commissioner may waive rate regulation and allow telecommunications carriers to have pricing flexibility for services that the commissioner determines, by whatever process the commissioner determines to be appropriate pursuant to rule, to be effectively competitive; provided that the rates for:
(1) Services such as wholesale services that are not effectively competitive are regulated and remain just, reasonable, and nondiscriminatory; and
(2) Universal service is preserved and advanced.
(e) Unless otherwise directed by the commissioner, a telecommunications carrier may charge any rate for a service less than or equal to the rate for the service included in the telecommunications carrier's filed tariff as long as the rate is at or above the total service long-run incremental cost of providing the service. The rate charged shall be available at the same terms for all customers in all geographic locations within the telecommunications carrier's service area.
(f) Except as provided in subsections (a) through (e), 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, shall be established, abandoned, modified, or departed from by any telecommunications carrier, except after thirty calendar 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 shall have the discretion to allow any rate, fare, charge, classification, schedule, rule, or practice to be established, abandoned, modified, or departed from upon notice no 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 customers of the telecommunications carrier may present testimony to the commissioner concerning the increase; provided that a contested case hearing and public hearing shall be held upon request by the consumer advocate or any customer of the telecommunications carrier. 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 the telecommunications carrier's form and method of keeping accounts, books and records, and accounting system;
(E) Regulate the return upon the telecommunications carrier's telecommunications carrier property;
(F) Regulate the incurring of indebtedness relating to the telecommunications carrier's telecommunications carrier business; and
(G) Regulate the telecommunications carrier's 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.
(g) The commissioner may, 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.
(h) Where two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the State, and whether or not affiliated) are 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 the commissioner 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.
(i) Notwithstanding any law to the contrary, for a telecommunications carrier having annual gross revenues of less than $2,000,000, the commissioner may make and amend the commissioner's 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 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.
§ -40 Separate affiliate audits. The commissioner shall receive the results of joint federal and state audits required for companies required to operate separate affiliates and obtain and pay for a joint federal and state audit every two years from an independent auditor pursuant to 47 U.S.C. section 272(d), as amended. The commissioner shall make the results of the audit 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. Such 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 -21 and deposited in the communications 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 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 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 the provisions of this section, or retain the rules provided in chapter 6-81 of the Hawaii Administrative Rules, which were in effect on July 1, 2012.
§ -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 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 such 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.
§ -45 Telecommunications number portability. The commissioner shall ensure that telecommunications number portability within an exchange is available, upon request. 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 that is approved by the commissioner.
(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 the surcharge as a separate line item on all customer billing statements.
(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, with the prior approval of the commissioner, 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:
(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;
(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 a 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 material adverse effect on the telecommunications carrier's telecommunications carrier operations.
All stock and every stock certificate, and every 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; and
"Nonresident alien" means an individual who is not a citizen of the United States and 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 this 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 or controlled, 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.
(c) 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 Acquirement of stock of another telecommunications carrier. No person or entity shall purchase or acquire, take, hold, or control, either directly or indirectly, any part of the capital stock of any telecommunications carrier corporation, organized or existing under or by virtue of the laws of this State, without having been first authorized to do so by an 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; provided that nothing herein 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 or its affiliate 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 such sale, lease, assignment, mortgage, disposition, encumbrance, merger, or consolidation, made other than in accordance with an order of the commissioner, shall be void.
§ -51 Injury to telecommunications carrier property. (a) 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.
(b) The measure of damages to the facility, equipment, or property injured or destroyed shall be the cost to repair or replace the facility, equipment, or property injured or destroyed including direct and allocated costs for labor, materials, supervision, supplies, tools, taxes, transportation, and administrative and general expense and other indirect or overhead expenses, less credit, if any, for salvage.
(c) The specifying of the measure of damages for the facility, equipment, or property shall not preclude the recovery of such other damages occasioned thereby as may be authorized by law.
§ -52 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 public utilities commission, the commissioner may direct all telecommunications carriers and cable operators to pay to the public utilities commission a fee in an amount and at a schedule determined by the commissioner.
§ -53 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 -34(h), the commissioner 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.
§ -54 Universal service. The commissioner shall preserve and advance universal service by:
(1) Maintaining affordable, just, and reasonable rates for basic and broadband residential service;
(2) Assisting individuals or entities who cannot afford the cost of or otherwise require assistance in obtaining or maintaining their basic or broadband service or equipment as determined by the commissioner; and
(3) Ensuring that consumers are given the information necessary to make informed choices among the alternative telecommunications providers and services.
§ -55 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 and broadband service, as defined by the commissioner;
(2) Assist customers located in the areas of the State that have high costs of essential telecommunications service or broadband service, low-income customers, and customers with disabilities, in obtaining and maintaining access to a basic set of essential telecommunications and broadband services as determined by the commissioner. The commissioner may expand or otherwise modify relevant programs, such as the lifeline program under section -42;
(3) Ensure that consumers in all communities are provided with access, at reasonably comparable rates, to all telecommunications and broadband services which are used by a majority of consumers located in metropolitan areas of the State. The commissioner 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 telecommunications carriers and broadband 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 commissioner shall administer the universal service program, including the establishment of criteria by which the purposes of the program are met.
§ -56 Universal service program; contributions. (a) There is established outside of the state treasury a special fund to be known as the universal service fund and to be administered by the commissioner 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 commissioner shall adopt rules regarding the distribution of moneys from the fund including reimbursements to carriers for providing reduced rates to low-income or elderly subscribers, residents of underserved or rural areas, or other subscribers, as authorized by the commissioner.
(b) The commissioner may allow distribution of funds directly to customers based upon criteria established by the commissioner.
(c) A telecommunications carrier, broadband service provider, 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 and broadband service providers 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 broadband services, including access to cable television.
(e) The commissioner shall require all telecommunications carriers and broadband service providers to contribute to the universal service program. The commissioner may require a person other than a telecommunications carrier or broadband service provider to contribute to the universal service program if, after notice and opportunity for hearing, the commissioner determines that the person is offering a commercial service in the State that directly benefits from the telecommunications or broadband infrastructure, and that directly competes with a telecommunications or broadband service provided in the State for which a contribution is required under this subsection.
(f) The commissioner shall designate the method by which the contributions under subsection (e) shall be calculated and collected. The commissioner shall consider basing contributions solely on the gross operating revenues from the retail provision of intrastate telecommunications or broadband services offered by the telecommunications carriers and broadband service providers subject to the contribution.
PART III. CABLE SERVICES
§ -61 Issuance of cable franchises and regulation of cable operators by the commissioner. The commissioner is authorized 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, 2012, holds a cable franchise or charter enacted or granted by the legislative or executive authority of the State or its predecessor governments, or that 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 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 an applicant in writing of the acceptance or non-acceptance for filing of an application or proposal for issuance of a cable franchise required by this part;
(2) After the issuance to the applicant 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 of the public hearing shall be given to the governing council and mayor of the county and to any incumbent 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 calendar 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 submitted at least two weeks in advance of the requested effective date of the extension, by mutual agreement, or by the commissioner's own motion.
§ -65 Issuance of cable franchise authority; criteria; content. (a) The commissioner may 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 cable 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 which 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 other existing cable systems.
(d) In issuing a cable franchise under this chapter, 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 the cable operator's 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 which 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 and make available a reasonable number of set top boxes at no cost to any school, institution of higher education, or public library within its service area as determined by the commissioner; provided that service is actually being delivered within a reasonable distance from the school, institution of higher education, or public library which may request service.
(f) 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.
(g) 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.
(h) 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.
§ -68 Public, educational, or governmental access services; designation of channels; designation of access organizations. (a) The cable operator shall designate three or more television channels or video streams for public, educational, or governmental use as directed by the commissioner.
(b) The commissioner may initiate, or an 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 discretion to grant, deny, or modify the request based upon the best interest of the public, requester, cable operator, or the State.
(c) The commissioner shall have the authority to designate and select access organizations; provided that the designation and selection shall be exempt from chapter 103D.
(1) No access organization shall be designated except upon written application or proposal to the commissioner, and following a public hearing on each island within the local franchise area that provides opportunity for public input;
(2) In determining whether to make a designation, the commissioner shall consider:
(A) The content of the application or proposal;
(B) The public need for the proposed service;
(C) The ability and experience of the applicant to offer public, educational, or government programming cablecast services;
(D) The suitability of the applicant;
(E) The technical and operational ability of the applicant to perform efficiently the services for which the designation is requested;
(F) Any objections arising from the public hearing, the cable advisory committee, or elsewhere; and
(G) Any other matters that the commissioner deems appropriate under the circumstances.
(3) The commissioner may require an applicant to provide information on its process for selecting members of its board of directors; provided that the commissioner shall have no authority to require that an applicant amend its selection process as a condition of designation;
(4) An applicant shall provide information regarding its past performance and any proposed practices for ensuring that the access facilities support the diversity of viewpoints and uphold the public's right of free speech;
(5) Any decision designating, modifying, or rescinding a designation of an access organization or the requirements therefore shall first be submitted to the cable advisory committee for advice under section -23;
(6) The commissioner shall enter into a contract with each designated and selected access organization for the provision of public, educational, or governmental access services. The commissioner shall ensure that the terms and conditions required of the operation of an access organization designated under this part are fair to the public and the State. The commissioner shall have the authority to do all things necessary to enforce the terms and conditions of the contracts with access organizations.
(7) The commissioner may require a cable operator to provide funds to an access organization for the provision of public, educational, or governmental access services in the cable operator's service area; provided that:
(A) Any such requirement shall be specified in the cable franchise issued to the cable operator by the commissioner;
(B) The access organization may use those funds to acquire or purchase access organization assets;
(C) Notwithstanding any other provision to the contrary, including but not limited to chapter 171, any and all access organization assets acquired or purchased from those funds, except as specified in subparagraph (D), shall be constructively held in trust for benefit of the State to be used primarily for the provision of public, educational, or governmental access services, or used for other purposes in the commissioner's sole discretion, and the commissioner may make these assets available to designated access organizations to provide public, educational, or governmental access services in a particular service area;
(D) If the contract between the commissioner and an access organization is terminated or cancelled:
(i) Any and all claims, rights, interests, or titles to the access organization assets acquired or purchased from those funds after the effective date of this Act shall belong to the State, and the State shall have the sole discretion on the disposition of those assets;
(ii) The access organization shall, upon request by the commissioner, provide and transfer all of these access organization assets to the commissioner or the commissioner's designee within a reasonable period of time after the contract is terminated or cancelled; and
(iii) The disposition of access organization assets purchased with those funds prior to the effective date of this Act shall be subject to the terms and conditions of the contracts between the access organization and the State.
§ -69 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 state law or any rules or orders prescribed by the commissioner or failure to comply with applicable federal law;
(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.
§ -70 Renewal of cable franchise. (a) 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.
(b) The periods of renewal shall be not less than five nor more than twenty years each.
(c) 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 access facilities and equipment and broadband facilities.
§ -71 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.
§ -72 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.
§ -73 Reports. Each cable operator shall provide the commissioner with reports of the cable operator's financial, technical, and operational condition, reports on its ownership, and any other information requested by the commissioner. 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.
§ -74 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 communications special fund established under section -20. The director shall transfer all of the annual fees previously allocated to the cable television division by depositing such fees into the communications special fund.
(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.
§ -75 Criminal and civil liability. Nothing in this chapter shall be deemed to affect the criminal and civil liability of cable programmers, cable operators, or 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; provided that no access organization shall incur any such liability arising from, based on, or related to any program not created by the access organization, which is broadcast on any channel obtained under section -65, or under similar arrangements."
SECTION 3. 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 the communications special fund, section -20, the drivers education fund underwriters fee, sections 431:10C-115 and 431:10G-107, 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 education trust fund, section 514B-71, and the mortgage foreclosure dispute resolution special fund, section 667-86. 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 4. Section 28-8.3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(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 office of Hawaiian affairs;
(8) By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485A;
(9) As grand jury counsel;
(10) By the Hawaiian home lands trust individual claims review panel;
(11) By the Hawaii health systems corporation, or its regional system boards, or any of their facilities;
(12) By the auditor;
(13) By the office of ombudsman;
(14) By the insurance division;
(15) By the University of Hawaii;
(16) By the Kahoolawe island reserve commission;
(17) By the division of consumer advocacy;
(18) By the office of elections;
(19) By the campaign spending commission;
(20) By the Hawaii tourism authority, as provided in section 201B-2.5;
(21) By the division of
financial institutions for any action involving the mortgage loan recovery
fund; [or]
(22) By the communications division; or
[(22)] (23) By
a department, in the event the attorney general, for reasons deemed by the
attorney general to be good and sufficient, declines to employ or retain an
attorney for a department; provided that the governor waives the provision of
this section."
SECTION 5. Section 28-8.3, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) Every attorney employed by any department on a full-time basis, except an attorney employed by the public utilities commission, the communications division, 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] commission for such public utility[.],
or by the communications division.
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 communications division."
SECTION 8. Section 92-21, Hawaii Revised Statutes, is amended to read as follows:
"§92-21 Copies of records; other costs and fees. (a) 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 copy.
(b) 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.
(c) 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] (d)
All reproduction [cost] costs 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.
(e) 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
communications division shall be deposited in the communications 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, beginning July 1, 2013, in the case of telecommunications carriers, to the communications commissioner its intention to exercise the power, with a description of the property to be condemned; and
(2) The public utilities commission or, beginning July 1, 2013, in the case of telecommunications carriers, the communications commissioner 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 communications division 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 by the
communications division;
(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 by the
communications division;
(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 by the communications division;
(3) The legislative body of the county in which the industrial park is proposed to be situated approves the industrial park.
(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.
(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 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 communications division 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. (a) 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.
(b) 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, beginning July 1, 2013 in the case
of telecommunications carriers, the communications division, 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 communications division, 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 by the communications division,
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] telecommunications carrier subject to this chapter
that has been authorized to establish lifeline telephone service rates by the
public utilities commission prior to July 1, 2013, or the communications
division beginning July 1, 2013, shall be allowed a tax credit, equal to
the lifeline telephone service costs incurred by the [utility] carrier,
to be applied against the [utility's] carrier's tax imposed by
this chapter. The amount of this credit shall be determined and certified
annually by the [public utilities commission.] commissioner under
chapter . The tax liability for a [telephone public
utility] telecommunications carrier claiming the credit shall be
calculated in the manner prescribed in section 239-5; provided that the amount
of tax due from the [utility] carrier 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 telecommunications carrier regulated under 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 by:
(1) Repealing the definition of "carrier of last resort".
[""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."]
(2) Repealing the definition of "designated local exchange service area".
[""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."]
(3) Amending the definition of "public utility" to read as follows:
""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; for the conveyance or transmission of telecommunications messages; for the furnishing of facilities for the transmission of intelligence by electricity within the State or between points within the State by land, water, or air; for the production, conveyance, transmission, delivery, or furnishing of light, power, heat, cold, water, gas, or oil; for the storage or warehousing of goods; or for the disposal of sewage; provided that the term shall include:
(A) An owner or operator of a private sewer company or sewer facility; and
(B) A telecommunications carrier or telecommunications common carrier; and
(2) Shall not include:
(A) An owner or operator of an aerial transportation enterprise;
(B) An owner or operator of a taxicab as defined in this section;
(C) Common carriers that transport only freight on the public highways, unless operating within localities, 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 is necessary in the public interest;
(E) A carrier by water to the extent that the carrier enters into private contracts for towage, salvage, hauling, or carriage between points within the State; provided that the towing, salvage, hauling, or carriage is not pursuant to either an established schedule or an undertaking to perform carriage services on behalf of the public generally;
(F) A carrier by water, substantially engaged in interstate or foreign commerce, that transports 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 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 public utilities commission pursuant to section
269-16.9[;], or beginning July 1, 2013, by the communications
commissioner pursuant to section -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 other purposes 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 are 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 agency that entered into the service contract;
(ii) The primary function of the facility is the processing of secondary treated wastewater that has been produced by a municipal wastewater treatment facility owned by a state or county agency;
(iii) The facility does not make sales of water to residential customers;
(iv) The facility may distribute and sell recycled 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" means treated wastewater that by design is intended or used for a beneficial purpose; and
(v) The facility is not engaged, either directly or indirectly, in the processing of food wastes;
(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;
(L) Any person who owns, controls, operates, or manages plants or facilities primarily used to charge or discharge a vehicle battery that provides power for vehicle propulsion; and
(M) Any person who:
(i) Owns, controls, operates, or manages a renewable energy system that is located on a customer's property; and
(ii) Provides, sells, or transmits the power generated from that renewable energy system to an electric utility or to the customer on whose property the renewable energy system is located; provided that, for purposes of this clause, a customer's property shall include all contiguous property owned or leased by the customer without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way, and utility rights-of-way.
If the
application of this chapter is ordered by the commission in any case provided
in paragraphs (2)(C), (2)(D), (2)(H), and (2)(I), or beginning July 1, 2013,
as determined by the communications commissioner as provided in paragraph
(2)(H), 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 the public convenience and
necessity, but any certificate issued under this proviso shall nevertheless be
subject to terms and conditions as the public utilities commission may
prescribe, as provided in sections 269-16.9 and 269-20[.], or as the
communications commission may prescribe, as provided in section -34,
whichever is applicable."
(4) Amending the definition of "telecommunications carrier" or "telecommunications common carrier" to read as follows:
""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, signalling, or control devices.] has the same meaning as in
section -1."
(5) Amending the definition of "telecommunications service" or "telecommunications" to read as follows:
""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 269-51, Hawaii Revised Statutes, is amended to read as follows:
"§269-51
Consumer advocate; director of commerce and consumer affairs. (a) The
director of commerce and consumer affairs shall appoint the executive
director of the division of consumer advocacy, who shall be the consumer
advocate in hearings before the public utilities commission. 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.]
(b) 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] The
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."
SECTION 23. Section 269-52, Hawaii Revised Statutes, is amended to read as follows:
"§269-52 Division of
consumer advocacy; personnel. There shall be a division of consumer advocacy within the department of
commerce and consumer affairs [to provide administrative support to] with
an executive director who shall be appointed by the director of commerce
and consumer affairs [acting] and shall act in the capacity of
consumer advocate. The director may employ and at pleasure dismiss [an]
the executive [administrator,] director, who shall be
exempt from chapter 76, may define the executive [administrator's] director's
powers and duties, and fix the executive [ administrator's] director's
compensation. The executive director may employ engineers, accountants,
investigators, clerks, and stenographers as may be necessary for the
performance of the consumer advocate's functions, in accordance with chapter
76; provided that:
(1) The executive director may employ up to ten utility, communications, 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."
SECTION 24. 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 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 communications division shall
retain their enforcement and inspection authority relating to carriers."
SECTION 25. 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, beginning July 1, 2013 in the case of
telecommunications carriers, the communications division; 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 26. 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 is regulated by
the public utilities commission [and community antennae television company,]
or the communications division, or employees of a cable operator within the
State under a franchise granted by the State that is regulated by the
communications division, while so employed, shall be exempt from the
provision of this chapter."
SECTION 27. 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, 271, 271G, and for discriminations by public utilities[.],
motor carriers, water carriers, or cable operators. If any conflict arises
between this part and chapter 269, [the latter prevails.] 271, 271G,
or , whichever is applicable, shall prevail."
SECTION 28. 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 or the Federal
Communications Commission, or [pursuant to chapter 440G,] beginning
July 1, 2013, the communications commissioner, 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 29. 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[,] or the
communications division, 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 30. 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 31. 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 32. 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 33. 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 34. 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 35. Section 269-16.85, Hawaii Revised Statutes, is repealed.
["[§269-16.85]
Retail intrastate services; fully competitive. (a) Notwithstanding
section 269-16.9 or any other law to the contrary, the public utilities
commission shall treat retail intrastate telecommunications services, under the
commission's classification of services relating to costs, rates, and pricing,
as fully competitive and apply all commission rules in accordance with that
designation. In addition, a 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 a telecommunications carrier, except upon receiving the approval
of the commission, shall not charge a higher rate for any retail
telecommunications service than the rate for the same service included in the
telecommunications carrier's filed tariff. All rates, fares, charges, and
bundled service offerings shall be filed with the public utilities commission
for information purposes only.
(b) This
section shall apply to retail rates charged for service to end-user consumers
only and shall not apply to wholesale rates charged for services provided by a
telecommunications carrier to another telecommunications provider, a wireless
communications provider, a voice over internet protocol communications
provider, or other similar communications provider.
(c) Nothing
herein shall modify any requirements of a telecommunications carrier to provide
lifeline telephone service, comply with carrier of last resort obligations, or
comply with applicable service quality standards."]
SECTION 36. 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 37. 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 38. 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 39. 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's 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 40. 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 41. 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 42. 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 43. 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 44. 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 45. 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 46. 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 47. 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's 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 48. 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 49. Chapter 440G, Hawaii Revised Statutes, is repealed.
SECTION 50. During fiscal year 2012-2013, an amount equal to 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 transferred to and deposited into the communications special fund.
SECTION 51. The unencumbered balance existing on June 30, 2012, in the cable television division subaccount in the compliance resolution fund shall be deposited into the communications special fund.
SECTION 52. There is appropriated out of the communications special fund the sum of $_________, or so much thereof as may be necessary for fiscal year 2012-2013 to implement this Act.
The sums appropriated shall be expended by the public utilities commission for the purposes of this Act.
SECTION 53. During fiscal year 2012-2013, an additional appropriation of $_________ out of the communications special fund shall be made to the public utilities commission to fund transition costs related to the retention of logistical and technical assistance by the public utilities commission in transferring electronic and physical data, as well as other related transition costs.
The sums appropriated shall be expended by the public utilities commission for the purposes of this Act.
SECTION 54. Transfer of functions. (a) All rules, policies, procedures, orders, certificates of authority, certificates of registration, certificates of public convenience and necessity, franchises, guidelines, and other material adopted, issued, or developed by the department of commerce and consumer affairs and public utilities commission to implement provisions of the Hawaii Revised Statutes which are reenacted or made applicable to the communications commissioner by this Act, shall remain in full force and effect until amended or repealed, as applicable, by the communications 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 communications division or the communications commissioner, as appropriate.
(b) 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 public utilities commission pursuant to the provisions of the Hawaii Revised Statutes, which are reenacted or made applicable to the communications 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 communications division or communications commissioner, as appropriate.
(c) All functions of the cable television division of the department of commerce and consumer affairs shall be transferred to the communications division.
SECTION 55. Transfer of records, equipment, appropriations, authorizations, and other property. 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 communications division shall be transferred with the functions to which they relate.
SECTION 56. Transfer of personnel. (a) The department of commerce and consumer affairs shall transfer seven positions from the cable television division to the communications division. The positions selected for transfer shall reasonably relate to the functions of the communications division.
(b) All officers and employees who are transferred to the communications division by this Act shall continue to perform their regular duties upon their transfer, subject to the personnel laws of the State and this Act. No officer or employee of the State shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act.
(c) In the event that an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State, as determined by the director of human resources development.
SECTION 57. Conflict with provisions of this Act. All Acts passed by the legislature during this regular session of 2012, whether enacted before or after the effective date of this Act, shall be amended to conform to this Act unless such Acts specifically provide that this Act is being amended.
SECTION 58. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 59. This Act shall take effect as follows:
(1) Sections 1, 3 to 30, 49, 50 to 53, and 55 to 59 of this Act shall take effect on July 1, 2012;
(2) Sections 31 to 48 and 54 of this Act shall take effect on July 1, 2013;
(3) Part I (relating to the communications division, generally) of the new chapter created in section 2 of this Act shall take effect on July 1, 2012; provided that those provisions relating to the regulation of telecommunications carriers shall take effect on July 1, 2013;
(4) Part III (relating to cable services) of the new chapter created in section 2 of this Act shall take effect on July 1, 2012; and
(5) Part II (relating to telecommunications) of the new chapter created in section 2 of this Act shall take effect on July 1, 2013.
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INTRODUCED BY: |
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BY REQUEST |
Report Title:
Regulation of Telecommunications and Cable Television Services
Description:
Creates a communications division within the Department of Commerce and Consumer Affairs to regulate telecommunications and cable television services; to promote the development of broadband infrastructure; and to advance the provision of broadband, telecommunications, and video programming services.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
