I 112th CONGRESS 1st Session H. R. 1746 IN THE HOUSE OF REPRESENTATIVES May 5, 2011 Ms. Baldwin (for herself and Mr. LaTourette) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Communications Act of 1934 to establish signal quality and content requirements for the carriage of public, educational, and governmental channels, to preserve support of such channels, and for other purposes.

1.

Short title

This Act may be cited as the Community Access Preservation Act or the CAP Act.

2.

PEG signal quality and content; preservation of support of PEG use

(a)

In general

Section 611 of the Communications Act of 1934 (47 U.S.C. 531) is amended— (1)by redesignating subsection (f) as subsection (h); and (2)by inserting after subsection (e) the following new subsections: (f)

Signal quality and content

(1)

In general

A cable operator that operates a cable system with channel capacity designated under subsection (b) or that is required to provide channel capacity under subsection (g)(7) shall, with respect to such channel capacity— (A)carry signals for public, educational, or governmental use from the point of origin of such signals to subscribers without material degradation and without altering or removing content or data provided as part of the public, educational, or governmental use; (B)provide such signals to, and make such signals viewable by, every subscriber of the cable system without additional service or equipment charges; and (C)provide to the appropriate local government subdivision, free of charge, any transmission services and the use of any transmission facilities that are necessary to meet the requirements of subparagraph (A). (2)

Enforcement

The requirements of this subsection may be enforced by— (A)a local government subdivision; or (B)a State. (3)

Limitation on additional requirements

A local government subdivision may not impose on a cable operator requirements relating to public, educational, or governmental use of a cable system that are in addition to the requirements of this subsection and subsection (g) unless— (A)such requirements are not inconsistent with this section; and (B)either— (i)such local government subdivision is authorized by State law to impose such requirements; or (ii)such local government subdivision is the franchising authority with respect to such cable system at the time such requirements are imposed. (g)

Preservation of support of public, educational, and governmental use

(1)

Study

Not later than 180 days after the date of enactment of the Community Access Preservation Act, the Commission shall submit to Congress a report containing— (A)an analysis of the impact of the enactment of State video service franchising laws since 2005 on public, educational, and governmental use of cable systems; (B)an analysis of the impact of the conversion from analog to digital transmission technologies on public, educational, and governmental use of cable systems; (C)recommendations for changes to this section required to preserve and advance localism and public, educational, and governmental use of advanced communications systems, including broadband systems; and (D)recommendations for changes to this section, after cable systems have converted to a fully digital delivery system, relating to requirements for the accessibility of public, educational, or governmental channel capacity and the placement of such channel capacity, except that such recommendations may not include allowing cable operators to impose additional charges on subscribers with respect to the quality, accessibility, functionality, or placement of such channel capacity. (2)

Level of support required

In a State that adopts legislation affecting cable system franchising requirements relating to support for public, educational, or governmental use of a cable system that becomes effective after May 31, 2005, notwithstanding such legislation, a cable operator owes to any local government subdivision in which the operator provides cable service during a year beginning after the date of enactment of the Community Access Preservation Act an amount for such year to be determined by the local government subdivision, but not to exceed the greatest of the following: (A)The amount of support provided in the last calendar year ending before the effective date of such State legislation. (B)The average annual amount of support provided over the term of the franchise under which the cable operator was operating on the day before the effective date of such State legislation. (C)The amount of support that the cable operator is required to provide to such local government subdivision under such State legislation during the year involved. (D)An amount of support equal to 2 percent of the gross revenues of the cable operator from the operation of the cable system to provide cable services in such local government subdivision during the year involved. (3)

Forms of support

For purposes of paragraph (2), support for public, educational, or governmental use of a cable system means all cash payments, in-kind support, and free services that the operator of the cable system, or its predecessor, provides to the local government subdivision for such use of the cable system. (4)

Adjustment for inflation

For a year beginning on or after the effective date described in subparagraphs (A) and (B) of paragraph (2), on the date that the Gross National Product Price Index is first published by the Bureau of Economic Analysis after the end of June of such year, the amounts specified in such subparagraphs shall be increased by the percentage increase, if any, in the Index published on such date from the Index first published after the end of June of the preceding year. (5)

Cash payments

A cable operator that owes amounts under paragraph (2) shall, beginning not later than 30 days after the date of enactment of the Community Access Preservation Act, pay such amounts in cash— (A)in accordance with the schedule for payment of franchise fees, communications taxes, or other similar assessments under any applicable franchise; or (B)if there is no payment schedule for such assessments under an applicable franchise, in accordance with the most frequent payment schedule for such assessments under applicable State or local law. (6)

Uses; disputes

(A)

Uses

Support provided to any local government subdivision under this subsection shall be dedicated to public, educational, or governmental use of channel capacity. (B)

Disputes

(i)

Mediation

If there is a dispute as to amounts owed under this subsection, undisputed amounts shall be paid to the local government subdivision, disputed amounts shall be paid into an escrow account, and the parties shall submit to nonbinding mediation. (ii)

Court proceedings

If the dispute cannot be settled using mediation, either party may seek relief from a court of competent jurisdiction. (7)

Channels

In a State that adopts legislation affecting cable system franchising requirements relating to the number of channels for public, educational, or governmental use of a cable system that becomes effective after May 31, 2005, a cable operator shall, notwithstanding such legislation, provide in a local government subdivision at least the greater of the following number of channels for such use: (A)The number of channels for such use that the operator was providing in the local government subdivision on the day before the effective date of such State legislation. (B)If the operator provided fewer than 3 channels for such use in the local government subdivision on the day before the effective date of such State legislation, a number specified by the local government subdivision, but not to exceed 3. (8)

Enforcement

The requirements of this subsection may be enforced by— (A)a local government subdivision; or (B)a State. . (b)

Definitions

(1)

Cable service

Section 602(6) of the Communications Act of 1934 (47 U.S.C. 522(6)) is amended by striking means and inserting means, regardless of the technology or transmission protocol used in the provision of service. (2)

Local government subdivision

Section 602 of such Act (47 U.S.C. 522) is amended— (A)by redesignating paragraphs (16) through (20) as paragraphs (17) through (21), respectively; and (B)by inserting after paragraph (15) the following new paragraph: (16)the term local government subdivision means— (A)except as provided in subparagraph (B), a franchising authority that derives its power to grant a franchise from State or local law; and (B)in a State that adopts legislation affecting cable system franchising requirements relating to support for public, educational, or governmental use of a cable system that becomes effective after May 31, 2005, an entity that was considered a franchising authority deriving its power to grant a franchise from State or local law as of the day before the effective date of such State legislation; . (3)

Franchise fee

Section 622(g)(2) of such Act (47 U.S.C. 542(g)(2)) is amended— (A)in subparagraph (B), by striking in the case of any franchise in effect on the date of enactment of this title,; (B)by striking subparagraph (C); and (C)by redesignating subparagraphs (D) and (E) as subparagraphs (C) and (D), respectively.