An Act To Encourage Broadband Development through Private Investment
Sec. 1. 35-A MRSA §9211-A, sub-§5, ¶¶D and E, as enacted by PL 2015, c. 323, §1, are amended to read:
Sec. 2. 35-A MRSA §9211-A, sub-§5, ¶F is enacted to read:
Sec. 3. 35-A MRSA §9217, sub-§1, ¶¶D and E, as enacted by PL 2015, c. 284, §11, are amended to read:
Sec. 4. 35-A MRSA §9217, sub-§1, ¶F is enacted to read:
Sec. 5. 35-A MRSA c. 94 is enacted to read:
MUNICIPAL BROADBAND PRIVATE INDUSTRY SAFEGUARDS
§ 9401. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
§ 9402. Scope of chapter
Nothing in this chapter applies to a municipality purchasing, leasing, constructing or equipping facilities that are designed to provide services within the municipality and that the municipality uses for internal municipal government purposes or, by written contract, leases, sells capacity in or grants other similar rights to a private provider to use the facilities in connection with the private provider's offering broadband service.
§ 9403. Municipal limitations on providing broadband service
Except as provided in this chapter, a municipality may not provide broadband service to a subscriber or, for the purpose of providing broadband service to a subscriber, purchase, lease, construct, maintain or operate a facility that is designed to provide broadband service. A municipality may not offer to provide or provide broadband service to a subscriber that does not reside within the geographic boundaries of the municipality.
§ 9404. Antitrust immunity
Notwithstanding Title 10, section 1104, subsection 4, a municipality that provides broadband service is not exempt from the recovery of damages, interest on damages, costs and attorney's fees for antitrust violations in providing broadband service. A municipality that provides broadband service is subject to applicable antitrust liabilities under the federal Local Government Antitrust Act of 1984, 15 United States Code, Sections 34 to 36.
§ 9405. Preliminary public hearing
Before a municipality may engage or offer to engage in an activity to provide broadband service, the legislative body of the municipality shall hold a preliminary public hearing.
If the legislative body elects to proceed after holding the preliminary public hearing required by this section, the legislative body of the municipality must approve the hiring of a feasibility consultant to conduct a feasibility study in accordance with section 9406.
§ 9406. Feasibility study; additional public hearing requirements
If a feasibility consultant is hired pursuant to section 9405, the legislative body of the municipality shall require the feasibility consultant to complete a feasibility study in accordance with this section, submit to the legislative body no later than 180 days from the date the feasibility consultant is hired to conduct the feasibility study the full written results of the feasibility study with a summary of the results that is no longer than one page in length and attend the public hearings described in this section to present the feasibility study results and respond to questions from the public.
For purposes of the financial projections required under this section, the feasibility consultant shall assume that the municipality sets prices for the proposed broadband service consistent with section 9410.
§ 9407. Municipal vote
A municipality may not provide broadband service unless the municipality holds an election under this section and the ballot proposition is approved. The legislative body of the municipality by a majority vote must call the election on whether or not to allow the municipality to provide the proposed broadband service. The election must be held at the next municipal general election or at a referendum called for the purpose of deciding whether to allow the municipality to provide broadband service.
The election must be called, advertised and conducted according to Title 30-A, chapter 121, subchapter 2. Notice of the election must also include a summary of the broadband service that the legislative body of the municipality proposes to provide to subscribers residing within the boundaries of the municipality; the feasibility study summary under section 9406; a statement that a full copy of the feasibility study under section 9406 is available for inspection and copying; and the location in the municipality where the feasibility study may be inspected or copied.
The ballot at the election must pose the question substantially as follows:
"Shall (name of the municipality) provide broadband service to the inhabitants of (municipality)?"
The voters shall indicate by a cross or check mark placed against the word "Yes" or "No" their opinion of the same. The results must be declared by the legislative body of the municipality and due certificate of the results filed by the municipal clerk with the Secretary of State. The ballot proposition takes effect immediately upon its approval by a majority of the legal voters of the municipality voting at the election.
§ 9408. Enterprise funds
§ 9409. Bonding authority
The legislative body of a municipality may by resolution issue one or more bonds to finance the capital costs for facilities necessary to provide broadband service to subscribers. The resolution must describe the purpose for which the indebtedness is to be created and specify the dollar amount of the one or more bonds proposed to be issued.
A bond issued under this section must be secured and paid for solely from the revenues generated by the municipality from providing broadband service. A municipality may not pay the origination, financing or other carrying costs associated with the one or more bonds issued under this section from any other funds of the municipality.
§ 9410. General operating limitations
A municipality that provides broadband service under this chapter is subject to the operating limitations of this section.
A municipality may not offer broadband service except in accordance with the prices, terms and conditions set forth in the municipality's price list.
§ 9411. Eminent domain
A municipality may not exercise its power of eminent domain to condemn the plant and equipment of a private provider of broadband service for the purpose of providing broadband service to a subscriber. A municipality may not exercise its power of eminent domain to condemn any real property in whole or to obtain an easement for the purpose of providing broadband service to a subscriber.
§ 9412. Service quality
§ 9413. Enforcement
Before a person that has or is likely to have a substantial interest affected by a municipality's violation of this chapter may file an action in District Court for violation of this chapter, that person must file a written complaint with the municipality in accordance with this section.
Appeal of a decision of the municipality may be made under the Maine Rules of Civil Procedure, Rule 80B.
This bill creates requirements that a municipality must meet in order to provide broadband service to its residents. It requires the completion of a feasibility study and requires the municipality to hold a referendum to decide whether the municipality may offer broadband service. It includes general operation limitations, including those related to the establishment of rates, the use of subsidization and the use of eminent domain. It requires the adoption of ordinances relating to service quality and enforcement by a municipality that elects to provide broadband service. It also removes antitrust liability protections from a municipality as those protections relate to the municipality's offering broadband service.
The bill also requires that in order to receive any grants from the ConnectME Authority, the municipality must show evidence of compliance with the requirements of the Maine Revised Statutes, Title 35-A, chapter 94.