S 2902 IS

To revise the definition of advanced service, and for other purposes.

July 20, 2000

Mr. BROWNBACK introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

To revise the definition of advanced service, 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 Internet Regulatory Relief Act of 2000'.

SEC. 2. REGULATION OF ADVANCED SERVICE

(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 thereof the following:

`SEC. 262. PROVISION OF ADVANCED SERVICE BY INCUMBENT LOCAL EXCHANGE CARRIERS.

`(a) IN GENERAL- Notwithstanding section 2(b) of this Act, or any other provision of law, an incumbent local exchange carrier shall not be subject to the requirements of--

`(1) section 251(c)(1), (c)(2), or (c)(5) with respect to the duty to provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with or notice of changes regarding any packet-based functionality of the local exchange carrier's network;

`(2) section 251(c)(1) or (c)(3) with respect to any network element that consists of or is created by a packet-switched or successor technology;

`(3) section 251(c)(1) or (c)(4) with respect to the provision of any advanced service;

`(4) section 251(c)(1) or (c)(6) with respect to any premises or structure used solely for network elements described in paragraph (2) of this subsection; or

`(5) section 251(c)(1), (c)(2)(3), or (c)(5) with respect to any optical fiber in the incumbent's distribution network that is used exclusively to provide telecommunications service to residential subscribers; and

`(i) that is or was either--

`(I) deployed where previously no outside telephone distribution plant existed;

`(II) deployed as a replacement for any outside telephone distribution plant; or

`(III) deployed from a remote terminal to a customer premises; and

`(ii) where the facilities are capable of providing telephone exchange service, 10 Base T Data (or its equivalent), and VHS-quality video, or are capable of providing all of these services through the upgrade of electronics.

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 a local exchange carrier upon request.

`(b) Buildout Requirements-

`(1) An incumbent local exchange carrier or affiliate shall--

`(A) make available advanced service to 80 percent of its telephone exchange service customers in a State within 3 years of the date of enactment of the Broadband Internet Regulatory Relief Act of 2000 where such services can be provided using an industry-approved standard and existing loop facilities; and

`(B) make available advanced service to 100 percent of its telephone exchange service customers in a State within 5 years of that date within 30 days of a bona fide request by any such customer where such services can be provided using an industry-approved standard and existing loop facilities.

`(2) An incumbent local exchange carrier that satisfies the requirements of paragraph (1), within the time frames set forth therein, shall continue to receive all regulatory relief provided by subsections (a) and (c) for 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 and upstream from a consumer to a provider at a rated speed of 128 kilobits per second or more where advanced service cannot

be provided using an industry-approved standard and existing loop facilities.

`(3) If an incumbent local exchange carrier fails to comply with paragraph (1) within the time frames set forth there, the regulatory relief provided by those subsections shall not apply to it.

`(c) PRICING FLEXIBILITY-

`(1) COMPETITION FOR ADVANCED SERVICE- Except as provided in this section, section 251, section 254, section 271, and section 272, no advanced service offered by an incumbent local exchange carrier nor the facilities used to provide such service shall be subject to common carrier regulation by the Commission or any State in any exchange where advanced service is being provided by an unaffiliated advanced service provider.

`(2) PETITION- An incumbent local exchange carrier seeking pricing flexibility under paragraph (1) may file a petition with the Commission seeking such relief. A petition under this paragraph is deemed to have been approved if the Commission does not act on it within 30 days after it is filed.

`(3) UNCONDITIONAL RELIEF- If the Commission determines under paragraph (1) that advanced service is being offered by an unaffiliated provider in the manner described in that paragraph, the Commission shall approve the petition of the incumbent local exchange carrier unconditionally.

`(4) ADVANCED SERVICE OUTSIDE AN INCUMBENT'S TERRITORY- The rates, terms, and conditions of advanced service offered by an incumbent local exchange carrier or its affiliate are not subject to Federal or State regulation in any geographic area in which that carrier, its successor, or assigns was not the local incumbent exchange carrier on February 8, 1996.

`(5) SCHEDULE OF CHARGES- For any advanced service that has not been determined by the Commission to be subject to competition under paragraph (1), the incumbent local exchange carrier furnishing such advanced service shall file with the Commission a schedule of charges and practices for such advanced service in a manner prescribed by the Commission under section 203. Any such schedule of charges and practices shall be deemed lawful and shall be effective 2 days after the date on which it was filed with the Commission unless the Commission takes action under section 204(a)(1) before the end of that 2-day period.

`(d) Noncompliance With Loop Provisioning and Collocation Rules-

`(1) STATE DETERMINATION- Except as provided in paragraph (2), subsections (a) and (c) shall cease to apply to an incumbent local exchange carrier after the date on which a State makes a final determination based on clear and convincing evidence, in response to a complaint filed by another local exchange carrier, that the incumbent local exchange carrier has materially failed to comply with the rules of the Commission with respect to collocation or the rules of the Commission or the State with respect to loop provisioning. The burden of proof shall be on the complainant.

`(2) Reinstatement-

`(A) IN GENERAL- An incumbent local exchange carrier to which subsections (a) and (c) have ceased to apply because of a determination by a State under paragraph (1) may petition the State for a reinstatement of the application of those subsections.

`(B) DETERMINATION REQUIRED- If the State that made the determination described in paragraph (1) subsequently makes a final determination that the carrier has complied fully with the rule with which the carrier was found, under paragraph (1), not to have complied, then the application of subsections (a) and (c) to that incumbent local exchange carrier shall be reinstated as of the date of that subsequent final determination.

`(C) DETERMINATION DEEMED AFFIRMATIVE IF STATE FAILS 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 shall be deemed to have made a determination that the carrier is in full compliance with the rules of the Commission with respect to collocation and the rules of the Commission and the State with respect to loop provisioning.

`(e) Remote Terminals-

`(1) An incumbent local exchange carrier using equipment located in a remote terminal to provide advanced services shall have the duty to provide to any requesting telecommunications carrier--

`(A) access to subloop elements at such remote terminal for the provision of advanced services; and

`(B) access to rights of way consistent with section 251(b)(4).

`(2) COLLOCATION NOT REQUIRED- Nothing in paragraph (1), any other provision of this Act, nor any other provision of law shall require an incumbent local exchange carrier to provide collocation at a remote terminal to any person.

`(f) DEFINITIONS- For purposes of this section--

`(1) the term `incumbent local exchange carrier' has the meaning given to that term by section 251(h);

`(2) the term `customer premises' means the customer's physical property or adjacent easement; and

`(3) the term `remote terminal' means the point in the incumbent local exchange carrier's network where the electronic capability to provide advanced service is deployed and where such carrier provides subloop unbundling.'.

SEC. 3. AMENDMENTS.

(a) Section 251(b) of the Communications Act of 1934 (47 U.S.C. 251(b)) is amended by adding at the end thereof the following:

`Notwithstanding paragraph (5), after the date of enactment of the Broadband Internet Regulatory Relief Act of 2000, no local exchange carrier shall be required to make any payment for the transport, delivery, or termination of telecommunications to, or telecommunications that connects to, the Internet or any Internet service provider. The transport, delivery, or termination of telecommunications to, or telecommunications that connects to, the Internet or any Internet service provider is hereby deemed to be an interstate communication and subject to the exclusive jurisdiction of the Commission. The provisions of this subsection following paragraph (5) do not alter the terms of any interconnection agreement in effect on May 10, 2000, during the existing term of any such agreement. Neither section 252(i) nor any other legal or regulatory requirement shall require any local exchange carrier to make available to any other telecommunications carrier an interconnection arrangement under this subsection that is in an agreement that is in effect on or after May 10, 2000. For the purposes of this subsection, the term `existing term' means the initial period of any interconnection agreement and does not include any period provided for negotiation or any extension of the initial period.'.

(b) Section 251(c)(3) of that Act (47 U.S.C. 251(c)(3)) is amended by adding at the end thereof the following: `An incumbent local exchange carrier shall not be required to provide network elements on an unbundled basis unless those elements are to be used predominantly to provide telephone exchange service.'.

(c) Section 251(f) of that Act (47 U.S.C. 251(f)) is amended by adding at the end thereof the following:

`(3) EXEMPTION FOR ADVANCED SERVICES- Neither section 251(c) nor any other common carrier regulation shall apply to any local exchange carrier with fewer than 2 percent of the nation's subscriber lines installed in the aggregate with respect to its provision of advanced services. Any such carrier may at its option continue to file tariffs for any advanced service and may also continue to participate in any National Exchange Carrier Association pooling arrangement.'.

SEC. 4. DEFINITIONS.

(a) IN GENERAL- Section 3 of the Communications Act of 1934 (47 U.S.C. 153) is amended by--

(1) redesignating paragraphs (1) through (51) as paragraphs (3) through (53), respectively; and

(2) inserting before paragraph (3), as redesignated, the following:

`(1) ADVANCED SERVICE- The term `advanced service' means 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 rated speed of 200 kilobits per second or more and upstream from a consumer to a provider at a rated speed of 128 kilobits per second or more for access to other services, to the Internet or other information or data services, or to private network or data facilities.

`(2) ADVANCED SERVICE PROVIDER- The term `advanced service provider' means any provider of advanced services.'.

(b) CONFORMING AMENDMENT- Section 271(c)(1)(A) of the Communications Act of 1934 (47 U.S.C. 271(c)(1)(A)) is amended by striking `3(47)(A),' and inserting `3(50)(A),'.

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