S 1126 IS

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

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

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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