[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1126 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                S. 1126

To facilitate the deployment of broadband telecommunications services, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 28, 2001

Mr. Brownback (for himself and Mr. Enzi) introduced the following bill; 
    which was read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To facilitate the deployment of broadband telecommunications services, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Broadband Deployment and Competition 
Enhancement Act of 2001''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress makes the following findings:
            (1) In 2001, some broadband service providers are 
        pervasively regulated, and some offering functionally 
        equivalent services are not significantly regulated.
            (2) Common carrier regulation is being extended 
        inappropriately to new broadband services being deployed by 
        incumbent local exchange carriers, while no regulation is 
        applied to new broadband services being deployed by local cable 
        television companies.
            (3) There should be deregulatory parity in the provision of 
        broadband services.
            (4) Broadband services and broadband service providers 
        should be subject to little or no regulation, as there are no 
        monopoly providers of such services and regulation of a nascent 
        service inhibits the development of a competitive market.
            (5) Facilities used to provide broadband services, such as 
        packet switching, are widely available in the market place and 
        should therefore not be considered a network element, which 
        common carriers must make available to other providers. Access 
        should continue for essential facilities.
            (6) It is important for the economic development of the 
        United States that all areas of the country receive the 
        benefits of access to high speed Internet and the deployment of 
        broadband services.
            (7) Common carrier regulation will not induce the 
        deployment of broadband services, but will retard it.
            (8) Both Federal and State regulatory agencies have 
        followed a regulatory scheme with respect to broadband 
        services, and this pattern must be reversed.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) To accelerate the deployment of broadband services to 
        all parts of the United States.
            (2) To achieve deregulatory parity among providers of 
        broadband services.
            (3) To reduce regulation of broadband services by the 
        Federal Government and the States.

SEC. 3. DEPLOYMENT OF BROADBAND SERVICES.

    (a) In General.--Part II of title II of the Communications Act of 
1934 (47 U.S.C. 251 et seq.) is amended by adding at the end the 
following new section:

``SEC. 262. DEPLOYMENT OF BROADBAND SERVICES.

    ``(a) Opt-In.--This section applies to an incumbent local exchange 
carrier only if the local exchange carrier provides written notice to 
the Commission of its decision to comply with the provisions of this 
section.
    ``(b) Next Generation Broadband Deployment.--
            ``(1) In general.--An incumbent local exchange carrier 
        shall not be subject to the requirements of section 251(c) with 
        respect to any optical fiber facility, or any technology of 
        like functionality, in the local exchange carrier's network 
        that is used to provide service to residential customers; and
                    ``(A) that is or was--
                            ``(i) deployed where no outside telephone 
                        distribution plant previously existed; or
                            ``(ii) deployed from any structure or 
                        premise to a customer premises; and
                    ``(B) if the facility is capable of providing 
                advanced service.
            ``(2) Rights of way.--Any provider of facilities referred 
        to in paragraph (1) shall have the duty to coordinate and 
        cooperate with other local exchange carriers to provide access 
        to rights of way consistent with section 251(b)(4).
            ``(3) Access to existing copper loop.--Nothing in this 
        subsection shall preclude the Commission or a State from 
        requiring that an incumbent local exchange carrier provide an 
existing copper loop to another local exchange carrier upon request.
    ``(c) Competition Enhancement.--
            ``(1) In general.--Notwithstanding section 2(b), or any 
        other provision of law, an incumbent local exchange carrier 
        shall not be subject to the requirements of--
                    ``(A) section 251(c), except as provided in 
                paragraph (2) of this subsection, with respect to its 
                packet switching capability, or any successor 
                technology; or
                    ``(B) section 251(c) with respect to the resale of 
                advanced service or high-speed Internet access service.
            ``(2) Collocation.--
                    ``(A) In general.--An incumbent local exchange 
                carrier has the duty to provide collocation at its 
                central offices in accordance with the rules of the 
                Commission established in accordance with section 
                251(c)(6) for equipment to be used in the provision of 
                advanced service.
                    ``(B) Remote terminal.--Neither the Commission nor 
                a State may require collocation for equipment for the 
                provision of advanced service inside a remote terminal 
                where no space for collocation of such equipment is 
                available. Collocation of advanced service equipment in 
                the remote terminal shall not include collocation 
                inside or within any equipment, components, or 
                facilities located inside the remote terminal.
    ``(d) Build-Out Requirement.--
            ``(1) In general.--Except as provided in paragraph (3), an 
        incumbent local exchange carrier or affiliate shall be capable 
        of providing advanced service to all of its local exchange 
        service customers in a State not later than 5 years after the 
        date of enactment of the Broadband Deployment and Competition 
        Enhancement Act of 2001, thereafter within 30 days of a bona 
        fide request by any such local exchange service customer.
            ``(2) Means of addressing requirement.--An incumbent local 
        exchange carrier or affiliate may use any technology, service, 
        or combination of services to meet the requirement in paragraph 
        (1).
            ``(3) Exemption.--An incumbent local exchange carrier or 
        affiliate is exempt from the requirement in paragraph (1) if 
        the provision of advanced service to a customer is not both 
        technically and economically feasible.
    ``(e) Pricing Flexibility for Retail Advanced Service.--
            ``(1) Inapplicability of governmental regulation.--The 
        rates, terms, and conditions of retail advanced service offered 
        by an incumbent local exchange carrier or its affiliates to 
        subscribers are not subject to Federal, State, or local 
        regulation.
            ``(2) Construction.--Nothing in this subsection shall be 
        construed to affect the obligations of a Bell operating company 
        under section 272(c).
    ``(f) Enforcement.--
            ``(1) Failure to build-out.--If an incumbent local exchange 
        carrier cannot comply with subsection (d)(1) as of the date 
        specified in that subsection, subsections (c) and (e) shall no 
        longer apply to such carrier as of that date.
            ``(2) Noncompliance with loop provisioning and collocation 
        rules.--
                    ``(A) In general.--Except as provided in paragraph 
                (3), subsections (c) and (e) shall cease to apply to an 
                incumbent local exchange carrier as of the date on 
                which a State makes a final and nonappealable 
                determination, based on clear and convincing evidence 
                and in response to a complaint filed by another local 
                exchange carrier, that--
                            ``(i) the incumbent local exchange carrier 
                        has willfully and materially failed to comply 
                        with the rules of the Commission with respect 
                        to collocation or loop provisioning; and
                            ``(ii) such failure has caused material 
                        harm to the complaining carrier's ability to 
                        compete.
                    ``(B) Burden of proof.--The burden of proof in a 
                complaint under subparagraph (A) shall be on the 
                complainant.
            ``(3) Reinstatement.--
                    ``(A) In general.--An incumbent local exchange 
                carrier to which subsections (c) and (e) have ceased to 
                apply because of a determination by a State under 
                paragraph (2) may petition the State for a 
                reinstatement of the application of subsections (c) and 
                (e) to such carrier.
                    ``(B) Determination.--If a State that makes a 
                determination described in paragraph (2) subsequently 
                makes a final determination that the carrier concerned 
                has complied fully with the rule with which the carrier 
was found, under paragraph (2), not to have complied, the application 
of subsections (c) and (e) to the carrier shall be reinstated as of the 
date of that subsequent final determination.
                    ``(C) Failure of state to act within 90 days.--For 
                purposes of subparagraph (B), a State that fails to 
                make a determination on a petition filed under 
                subparagraph (A) within 90 days of the date of the 
                filing of the petition shall be deemed to have made a 
                determination that the carrier concerned is in full 
                compliance with the rules of the Commission with 
                respect to collocation or loop provisioning.
    ``(g) Definitions.--In this section:
            ``(1) Incumbent local exchange carrier.--The term 
        `incumbent local exchange carrier' has the meaning given that 
        term in section 251(h).
            ``(2) Customer premises.--The term `customer premises' 
        means a customer's physical property and any adjacent 
        easements.
            ``(3) Packet switching capability.--The term `packet 
        switching capability' has the meaning given that term in 
        section 51.319(c)(4) of title 47, Code of Federal Regulation, 
        as that section is in effect as of June 1, 2001.
            ``(4) Remote terminal.--The term `remote terminal' means a 
        point in a local exchange carrier's network, not including a 
        central office, where the electronic capability to provide 
        advanced service is deployed.
            ``(5) Advanced service.--The terms `advanced service' and 
        `high-speed Internet access service' mean any service or 
        combination of services that consists of, or includes, the 
        offering of a capability to transmit information using a packet 
        switched or successor technology downstream from a provider to 
        a consumer at a generally rated speed of 364 or kilobits per 
        second or higher.''.

SEC. 4. AMENDMENT.

    Section 251(c)(3) of the Communications Act of 1934 (47 U.S.C. 
251(c)(3)) is amended by adding at the end the following: ``An 
incumbent local exchange carrier shall not be required to convert to a 
network element or combination of network elements any special access 
circuit being provided on June 1, 2001.''.

SEC. 5. REGULATORY PARITY.

    (a) Identification of Disparate Regulatory Treatment of Advanced 
Service.--Not later than 6 months after the date of the enactment of 
this Act, the Federal Communications Commission shall identify in its 
regulations any requirements or obligations that result in different or 
disparate treatment among various types of providers of advanced 
service and high-speed Internet access service or among different 
technologies used to provide such service.
    (b) Termination of Applicability.--Not later than one year after 
the date of the enactment of this Act, the Commission shall modify its 
regulations in order to eliminate each difference and disparity in 
treatment identified under subsection (a) unless the Commission 
determines that such difference or disparity in treatment should 
continue to apply in the public interest.
    (c) Biennial Review.--In every biennial review conducted pursuant 
to section 11 of the Communications Act of 1934 (47 U.S.C. Sec. 161), 
the Commission shall--
            (1) make a determination as to whether or not a difference 
        or disparity in treatment, if any, that continues to apply 
        under subsection (b), or under this subsection after subsequent 
        review under this subsection, should continue to apply in the 
        public interest; and
            (2) if the Commission determines that such difference or 
        disparity in treatment should not continue to apply in the 
        public interest, modify its regulations in order to eliminate 
        such difference or disparity in treatment.
    (d) Advanced Service Defined.--In this section, the terms 
``advanced service'' and ``high-speed Internet access service'' have 
the meanings given those terms in section 262(h)(4) of the 
Communications Act of 1934, as added by section 2 of this Act.
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