II 109th CONGRESS 1st Session S. 1349 IN THE SENATE OF THE UNITED STATES June 30, 2005 Mr. Smith (for himself and Mr. Rockefeller) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To promote deployment of competitive video services, eliminate redundant and unnecessary regulation, and further the development of next generation broadband networks.

1.

Short title

This Act may be cited as the Video Choice Act of 2005.

2.

Findings

Congress finds the following: (1)Cable rates continue to rise substantially faster than the overall rate of inflation. (2)Wire-based competition in video services is limited to very few markets. According to the Federal Communications Commission, only 2 percent of all cable subscribers have the opportunity to choose between 2 or more wire-based video service providers. (3)It is only through wire-based video competition that price competition exists. The Government Accountability Office has confirmed that where wire-based competition exists, cable rates are 15 percent lower than in markets without competition. (4)It is in the public interest to further wire-based competition in the video services market in order to provide greater consumer choice and lower prices for video services. (5)To spur competition in the communications industry, Congress has decreased the regulatory burden on new entrants, thereby increasing entry into the market and creating competition. (6)The United States continues to fall behind in broadband deployment rates. According to a recent study by the International Telecommunications Union, the United States is now ranked 16th in the world in broadband deployment. (7)The deployment of advanced high capacity networks would greatly spur economic development in rural America. (8)The deployment of advanced networks that can offer substantially higher capacity are critical to the long-term competitiveness of the United States.

3.

Amendment to communications act

Title VI of the Communication Act of 1934 (47 U.S.C. 521 et seq.) is amended by adding at the end the following: VI

Video choice

661.

Definition

In this part, the term competitive video services provider means any provider of video programming, interactive on-demand services, other programming services, or any other video services who has any right, permission, or authority to access public rights-of-way independent of any cable franchise obtained pursuant to section 621 or pursuant to any other Federal, State, or local law.

662.

Regulatory framework

(a)

Redundant franchises prohibited

Notwithstanding any other provision of this Act, no competitive video services provider may be required, whether pursuant to section 621 or to any other provision of Federal, State, or local law, to obtain a franchise in order to provide any video programming, interactive on-demand services, other programming services, or any other video services in any area where such provider has any right, permission, or authority to access public rights-of-way independent of any cable franchise obtained pursuant to section 621 or pursuant to any other Federal, State, or local law. (b)

Fees

(1)

In general

Any competitive video services provider who provides a service that otherwise would qualify as a cable service provided over a cable system shall be subject to the payment of fees to a local franchise authority based on the gross revenues of such provider that are attributable to the provision of such service within such provider's service area. (2)

Considerations

In determining the fees required by this subsection— (A)(i)the rate at which fees are imposed shall not exceed the rate at which franchise fees are imposed on any cable operator providing cable service in the franchise area, as determined in accordance with section 622 and any related regulations; or (ii)in any jurisdiction in which no cable operator provides service, the rate at which franchise fees are imposed shall not exceed the statewide average; and (B)the only revenues that shall be considered are those attributable to services that would be considered in calculating franchise fees if such provider were deemed a cable operator for purposes of section 622 and any related regulations. (3)

Billing

A competitive video services provider shall designate that portion of the bill of a subscriber attributable to the fee under paragraph (2) as a separate item on the bill. (c)

Terms of service

A competitive video services provider shall— (1)be subject to the retransmission consent provisions of section 325(b); (2)(A)carry, within each local franchise area, any public, educational, or governmental use channels that are carried by cable operators within such franchise area pursuant to section 611; or (B)provide, in any jurisdiction in which no cable operator provides service, reasonable public, educational and government access facilities pursuant to section 611; (3)be subject to the must-carry provisions of section 614; (4)carry noncommercial, educational channels as required by section 615; (5)be considered a multichannel video programming distributor for purposes of section 628 and be entitled to the benefits and protection of that section; (6)protect the personally identifiable information of its subscribers as required in section 631; (7)comply with any consumer protection and customer service requirements promulgated by the Commission pursuant to section 632; (8)not be subject to any other provisions of this title; and (9)not deny services to any group of potential residential subscribers because of the income of the residents of the local area in which such group resides. (d)

Regulatory treatment

Except to the extent expressly provided in this part, neither the Commission nor any State or political subdivision thereof may regulate the rates, charges, terms, conditions for, entry into, exit from, deployment of, provision of, or any other aspect of the services provided by a competitive video services provider. (e)

State and local government authority

Except as provided in subsection (a), nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to enact or enforce any consumer protection law.

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4.

Regulation of common carriers

Section 651(a)(3) of the Federal Communications Act (47 U.S.C. 571(a)(3)) is amended— (1)in subparagraph (A), by striking or after the semicolon; (2)in subparagraph (B), by striking the period and inserting ; or; and (3)by adding at the end the following: (C)if such carrier is a competitive video services provider providing video programming pursuant to part VI of this title, such carrier shall not be subject to the requirements of this title but instead shall be subject only to the provisions of part VI of this title. .

5.

Existing Franchise agreements

Any franchise agreement entered into by a franchising authority and a competitive video service provider for the provision of video service prior to the date of enactment of this Act shall be exempt from the provisions of this Act for the term of such agreement.