As Introduced

125th General Assembly
Regular Session
2003-2004
H. B. No. 591


Representative Collier 

A BILL
To amend sections 1332.01, 1332.02, 1332.03, 1332.04, 1
1332.05, 1332.06, 1332.07, and 1332.09 of the 2
Revised Code to extend cable competition law to 3
the provision by a political subdivision of 4
telecommunications service over a cable system or 5
using telecommunications equipment.6


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 1332.01, 1332.02, 1332.03, 1332.04, 7
1332.05, 1332.06, 1332.07, and 1332.09 of the Revised Code be 8
amended to read as follows:9

       Sec. 1332.01.  As used in sections 1332.01 to 1332.10 of the 10
Revised Code:11

       (A) "Applicable generally accepted accounting principles" 12
means accounting principles and standards set forth in all 13
applicable pronouncements of the governmental accounting standards 14
board.15

       (B) "Cable service," "cable system," "franchise," and16
"franchising authority" have the same meanings as in the17
"Telecommunications Act of 1996," Pub. L. No. 104-104, Title III, 18
Sections 301(a) and 302 (b)(2), 110 Stat. 114, 124, 47 U.S.C.A. 19
522.20

       (C) "Cable service provider" means any person or group of 21
persons that is engaged in the provision of cable service over a 22
cable system and directly or indirectly owns a significant 23
interest in the cable system, or that, through any arrangement,24
otherwise controls or is responsible for the management and 25
operation of the cable system.26

       (D) "Color of office," "public office," and "public official"27
have the same meanings as in section 117.01 of the Revised Code.28

       (E) "Direct costs" means all costs, whether capital costs,29
operating costs, or otherwise, that would be eliminated if the30
service or function to which they relate were discontinued.31

       (F) "Full cost accounting" means, in accordance with 32
applicable generally accepted accounting principles, accounting 33
for all direct and indirect costs, including capital costs, that34
are incurred in the ownership, management, or operation of a cable 35
system or provision of cable service over a cable system or in the 36
ownership, management, or operation of telecommunications 37
equipment or the provision of telecommunications service over a 38
cable system or using telecommunications equipment.39

       (G) "Indirect costs" means all costs, whether capital costs,40
operating costs, or otherwise, that are not direct costs. Indirect41
costs that support multiple services or functions shall be 42
allocated among those services and functions in proportion to the43
relative burden each service or function places on the cost 44
category and by any reasonable method consistent with applicable 45
generally accepted accounting principles.46

       (H) "Person" includes any individual, corporation, 47
partnership, limited liability company, association, trust, or 48
political subdivision.49

       (I) "Private cable service provider" means any cable service50
provider other than a public cable service provider.51

       (J) "Private cable service regulation" means any regulation, 52
rule, requirement, or restriction of or by a political subdivision 53
of this state that applies, by resolution, ordinance, rule, 54
regulation, franchising agreement, or otherwise, to the terms and55
conditions of service, conditions of access to public property, 56
permits for pole attachments, or any other matter concerning or 57
affecting the provision of cable service over a cable system by a 58
private cable service provider.59

       (K) "Private telecommunications service provider" means any 60
telecommunications service provider other than a public 61
telecommunications service provider.62

       (L) "Private telecommunications service regulation" means any 63
regulation, rule, requirement, or restriction by a political 64
subdivision of this state that applies by resolution, ordinance, 65
rule, regulation, franchising agreement, or otherwise, to the 66
terms and conditions of service, conditions of access to public 67
property, permits for pole attachments, or any other matter 68
concerning or affecting the provision by a private 69
telecommunications service provider of telecommunications service 70
over a cable service or using telecommunications equipment.71

       (M) "Public cable service provider" means any cable service72
provider that is a political subdivision of this state. 73

       (L)(N) "Public cable service recipient" means any household 74
or business that receives cable service or benefits from video 75
programming service, transmission service, distribution service, 76
repair service, billing service, or customer service that is 77
provided by, originates from, or is controlled by a public cable 78
service provider of a political subdivision.79

       (M)(O) "Public money" means any of the following:80

       (1) Any money received, collected by, or due a public 81
official under color of office;82

       (2) Any money collected by any person on behalf of a public83
office or as a purported representative or agent of the public84
office;85

       (3) Any money received by any person, whether directly or86
indirectly, from the United States, this state, a county,87
municipal corporation, township, or any other public office for 88
the purpose of performing or assisting with a governmental 89
function or program authorized by or the responsibility of the 90
United States, this state, a county, municipal corporation, 91
township, or any other public office.92

       (P) "Public telecommunications service provider" means any 93
telecommunications service provider that is a political 94
subdivision of this state.95

       (Q) "Public telecommunications service recipient" means any 96
household or business that receives telecommunications service or 97
benefits from telecommunications service, transmission service, 98
distribution service, repair service, billing service, or customer 99
service that is provided by, originates from, or is controlled by 100
a public telecommunications service provider.101

       (R) "Telecommunications equipment" and "telecommunications 102
service" have the same meanings as in P.L. 105-33, Title III, 103
Section 3001(b), 111 Stat. 258, 47 U.S.C. 153.104

       (S) "Telecommunications service provider" means any person or 105
group of persons that is engaged in providing telecommunications 106
service over a cable system or using telecommunications equipment 107
and either directly or indirectly owns a significant interest in 108
that system or equipment or, through any arrangement, otherwise 109
controls or is responsible for the management and operation of 110
that system or equipment.111

       Sec. 1332.02.  It is the public policy of this state under112
sections 1332.01 to 1332.10 of the Revised Code to:113

       (A) Ensure fair competition in the provision in this state of114
cable service over a cable system and of telecommunications 115
service, consistent with the procompetitive policies of the 116
"Telecommunications Act of 1996," Pub. L. No. 104-104, 110 Stat. 117
56, 47 U.S.C.A. 151, for the purposes of providing the widest 118
possible diversity of entertainment, information, and news 119
sources, and telecommunications service to the general public; 120
advancing the unfettered exercise of rights under the first 121
amendment to the United States Constitution to free speech and the 122
free flow of information; enhancing the development and widespread 123
use of technological advances in the provision of cable service 124
over a cable system and of telecommunications service; and 125
encouraging improved customer service at competitive rates;126

       (B) Ensure that all cable service over a cable system isand 127
all telecommunications service are provided in this state within a 128
comprehensive and nondiscriminatory federal, state, and local 129
scheme.130

       Sec. 1332.03.  (A) Nothing in sections 1332.01 to 1332.10 of 131
the Revised Code is a determination by the general assembly that 132
the provision by a municipal corporation of cable service over a 133
cable system by a municipal corporationor of telecommunications 134
service over a cable system or using telecommunications equipment135
does or does not constitute a public utility pursuant to Section 4 136
of Article XVIII, Ohio Constitution.137

       (B) Nothing in sections 1332.01 to 1332.10 of the Revised 138
Code confers authority on a political subdivision of this state to 139
own, lease, or operate a cable system or to, provide cable service 140
over a cable system, or provide telecommunications service over a 141
cable system or using telecommunications equipment; rather, that142
authority, if any, is as otherwise may be conferred by law.143

       (C) Except as expressly provided in sections 1332.01 to 144
1332.10 of the Revised Code, nothing in those sections restricts 145
the authority of a political subdivision of this state, otherwise 146
conferred by law, to grant a franchise to provide cable service or 147
telecommunications service.148

       Sec. 1332.04.  (A) No political subdivision of this state 149
shall provide cable service over a cable system or 150
telecommunications service over a cable system or using 151
telecommunications equipment, whether bundled with other services152
or unbundled, except in accordance with sections 1332.01 to 153
1332.10 of the Revised Code.154

       (B)(1) No political subdivision of this state that is a 155
public cable service provider or contracts with a public cable 156
service provider for cable service over a cable system, or that is 157
a public telecommunications service provider or contracts with a 158
public telecommunications service provider for telecommunications 159
service over a cable system or using telecommunications equipment,160
shall, by any means, do any of the following:161

       (a) Prefer or advantage any public cable service provider or 162
public telecommunications service provider or discriminate against 163
any private cable service provider or private telecommunications 164
service provider in any material matter affecting the provision, 165
within the jurisdiction of the political subdivision, of cable 166
service over a cable system or of telecommunications service over 167
a cable system or using telecommunications equipment; 168

       (b) Fail to apply any private cable service or private 169
telecommunication service regulation without discrimination to, 170
respectively, a public cable service provider or public 171
telecommunications service provider within the jurisdiction of the 172
political subdivision;173

       (c) Fail to pay all applicable fees, including, but not174
limited to, franchise fees, permit fees, pole attachment fees, or 175
the equivalent of any such fees;176

       (d) Subsidize in any manner the operations of a public cable 177
service provider or public telecommunications service provider 178
with public money of the political subdivision.179

       (2) Nothing in division (B)(1) of this section requires the180
application of a private cable service regulation to a public 181
cable service provider or a private telecommunications service 182
regulation to a public telecommunications service provider if that 183
application would be without legal or practical consequence, such 184
as the application of a private cable service regulation requiring 185
provision of an insurance bond, which application to a public 186
cable service provider would require it to insure its performance 187
to itself.188

       (C) No political subdivision of this state that is a public189
cable service provider or public telecommunications service 190
provider shall have extraterritorial public cable or public 191
telecommunications service recipients in excess of fifty per cent 192
of, respectively, the number of public cable or public 193
telecommunications service recipients that reside within the194
geographical limits of the political subdivision. Nothing in this195
division prohibits public cable service providers from jointly 196
owning and operating head-end equipment or prohibits public 197
telecommunications service providers from jointly owning and 198
operating telecommunications equipment. Each such public cable 199
service provider shall pay that proportion of the full costs of 200
owning and operating such head-end equipment, including, but not 201
limited to, the costs of construction, acquisition, installation, 202
improvement, enhancement, modification, financing, maintenance, 203
repair, and operation, and each such public telecommunications 204
provider shall pay that proportion of such full costs of owning 205
and operating telecommunications equipment, equal to the total 206
population of the political subdivision that is such public cable 207
servicethe provider divided by the total population of all 208
political subdivisions that are public cable servicesuch209
providers jointly owning and operating such, as applicable, that210
head-end equipment, or that telecommunications equipment211
determined annually or with such frequency as such public cable 212
servicethe providers otherwise agree.213

       (D) No political subdivision of this state that is a 214
franchising authority shall unreasonably withhold a request by a215
cable service provider or telecommunications service provider to 216
transfer, modify, or renew, in accordance with the terms of the 217
franchise and, as applicable, in accordance with the provisions of 218
the "Telecommunications Act of 1996," Pub. L. No. 104-104, Title 219
III, Section 301(i), 110 Stat. 117, 47 U.S.C.A. 537, the "Cable220
Communications Policy Act of 1984," Pub. L. No. 98-549, Section 2, 221
98 Stat. 2790, 47 U.S.C.A. 545, or the "Cable Television Consumer222
Protection and Competition Act of 1992," Pub. L. No. 102-385, 223
Section 18, 106 Stat. 1493, 47 U.S.C.A. 546, its existing 224
franchise, as otherwise authorized by law, to provide cable225
service over a cable system or to provide telecommunications 226
service over a cable system or using telecommunications equipment.227

       Sec. 1332.05.  (A)(1) In addition to satisfying any other228
applicable notice and hearing requirements, the legislative 229
authority of a political subdivision of this state shall provide 230
notice in accordance with division (B) of this section of its 231
consideration of an ordinance or resolution that would authorize 232
the expenditure of public money for a cable system or the 233
provision of cable service over a cable system or for 234
telecommunications equipment or the provision of 235
telecommunications service over a cable system or using 236
telecommunications equipment, including, but not limited to, an 237
ordinance or resolution that would authorize any of the following:238

       (a) A feasibility study, marketing study, or any cost-benefit 239
analysis concerning the establishment, acquisition, construction, 240
improvement, financing, leasing, management, or operation of a 241
cable system or the provision of cable service over a cable system 242
or the establishment, acquisition, construction, improvement, 243
financing, leasing, management, or operation of telecommunications 244
equipment or the provision of telecommunications service over a 245
cable system or using telecommunications equipment;246

       (b) The acquisition, construction, installation, improvement,247
financing, lease, or agreement for management or operation of 248
facilities capable of providing cable service over a cable system 249
or of providing telecommunications service over a cable system or 250
using telecommunications equipment; 251

       (c) An agreement or arrangement for the use of a cable system 252
or for the provision of cable service over a cable system or for 253
the use of telecommunications equipment or the provision of 254
telecommunications service over a cable system or using 255
telecommunications equipment; 256

       (d) Approval of the terms of a franchise agreement for the 257
political subdivision as a public cable service provider, if any 258
such agreement exists, or with any other public cable service 259
provider, to provide cable service over a cable system; or of the 260
terms of a franchise or other agreement, if any, for the political 261
subdivision as a public telecommunications service provider to 262
provide telecommunications service over a cable system or using 263
telecommunications equipment, or the terms of a franchise or other 264
agreement with any other public telecommunications service 265
provider to so provide telecommunications service.266

       (2) Any ordinance or resolution enacted by the legislative 267
authority of a political subdivision of this state authorizing the 268
formation of a public cable service provider or public 269
telecommunications service provider by the political subdivision 270
shall include a comprehensible statement of the general plan for 271
financing the acquisition, construction, installation, 272
improvement, or lease of the cable system or of the 273
telecommunications equipment. No such ordinance or resolution 274
shall be deemed an emergency ordinance or resolution or a measure 275
necessary for the immediate preservation of the public peace, 276
health, or safety in the political subdivision, and no such 277
ordinance or resolution shall take effect sooner than thirty days 278
after its date of enactment. If, within thirty days after such 279
date of enactment, a petition signed by ten per cent of the 280
electors of the political subdivision, based upon the total number 281
of votes cast at the last preceding general election of the 282
political subdivision, shall be filed with the appropriate office 283
demanding a referendum on the ordinance or resolution, the 284
ordinance or resolution shall not take effect until submitted to 285
the electors and approved by a majority of those voting on it. 286

       (3) Divisions (A)(1) and (2) of this section apply only with287
respect to the first time an ordinance or resolution described, 288
respectively, in division (A)(1) or (2) of this section is 289
considered or enacted, respectively, by a legislative authority,290
and a legislative authority need not comply with division (A)(1) 291
or (2) of this section regarding any ordinance or resolution that292
pertains to the same cable system or the same telecommunications 293
equipment and that is considered or enacted, respectively, 294
subsequent to an ordinance or resolution that was enacted and that 295
complied with division (A)(1) or (2) of this section, 296
respectively.297

       (B) Notice under division (A)(1) of this section shall be 298
given at least forty-five days prior to the enactment of the 299
ordinance or resolution and shall be given to all persons that 300
have filed a pending application with the political subdivision to301
provide within its jurisdiction cable service over a cable system 302
or are providing cable service over a cable system pursuant to a 303
franchise granted by the political subdivision or, if the 304
ordinance or resolution concerns the provision of 305
telecommunications service, to all telecommunications service 306
providers that have filed any requisite pending application with 307
the political subdivision to provide or that are providing that 308
service within the political subdivision. The notice shall be in 309
writing, delivered to the address designated by the person as the 310
address for receipt of notices or, if no such designation has been 311
made, to the operating address of that person as registered with 312
the political subdivision. The notice shall be delivered by 313
certified mail, registered mail, overnight delivery, or a similar 314
method of receipted delivery.315

       (C) No political subdivision shall fail to comply with 316
division (A) of this section.317

       Sec. 1332.06.  (A) A political subdivision of this state that 318
is a public cable service provider or a public telecommunications 319
service provider shall maintain a special fund for, respectively,320
its cable system and the provision of cable service over that321
cable system or for its telecommunications equipment and the 322
provision of telecommunications service over a cable system or 323
using telecommunications equipment and shall be subject, with 324
respect to thateither special fund, to sections 5705.09, 5705.10, 325
5705.14, 5705.15, 5705.16, 5705.39, 5705.40, 5705.41, 5705.44, and 326
5705.45 and any other applicable provision of Chapter 5705. of the 327
Revised Code concerning the establishment or maintenance of the 328
special fund.329

       (B) A political subdivision of this state that is a public 330
cable service provider or a public telecommunications service 331
provider shall prepare and publish, on or before the first day of 332
June of each year for the prior calendar year, an annual report 333
on, respectively, its cable system and the provision of cable 334
service over that cable system or its telecommunications equipment 335
and the provision of telecommunications service over a cable 336
system or using telecommunications equipment. The report shall be 337
substantially in accordance with full cost accounting and shall 338
include disclosure of the amount, source, and cost of working 339
capital utilized for its cable system and the provision of cable 340
service over that cable system andor its telecommunications 341
equipment and the provision of telecommunications service over a 342
cable system or using telecommunications equipment, as well as343
estimates of the amount of any franchise fee, regulatory fee, 344
occupation tax, pole attachment fee, property tax, or other fee or 345
tax that would be applicable to its cable system and the provision 346
of cable service over that cable system, or to its 347
telecommunications equipment and the provision of 348
telecommunications service over a cable system or using 349
telecommunications equipment, but for any exemption by reason of 350
its status as a political subdivision, which exemption is 351
authorized by law. Nothing in sections 1332.01 to 1332.10 of the352
Revised Code requires any elected official of the political 353
subdivision to maintain a log or other record of the time the 354
official spends on the business of the public cable service 355
provider or the public telecommunications service provider in the 356
course of official duties.357

       (C) No political subdivision shall fail to comply with 358
division (A) or (B) of this section.359

       Sec. 1332.07.  A violation of any provision of division (B) 360
of section 1332.04 of the Revised Code by a political subdivision, 361
whether as a franchising authority, public cable service provider, 362
public telecommunications service provider, or otherwise, relieves 363
any other cable service provider in the jurisdiction of the 364
political subdivision from any obligation to comply with or 365
perform any regulation, rule, requirement, or restriction that is 366
the subject of the violation, and entitles any such other cable 367
service provider or telecommunications service provider to 368
equivalent treatment, right, or benefit.369

       Sec. 1332.09.  (A) A political subdivision subject to 370
division (A), (B), or (C) of section 1332.04 or division (C) of 371
section 1332.05 of the Revised Code may bring a civil action for 372
declaratory relief in the court of common pleas in the county in373
which the political subdivision is located or in any county of 374
this state in which the political subdivision is a public cable 375
service provider or public telecommunications service provider.376

       (B) A person that is or is likely to be adversely affected by 377
a violation of division (A), (B), or (C) of section 1332.04 or378
division (C) of section 1332.05 of the Revised Code may bring a379
civil action for declaratory or injunctive relief in such a court 380
of common pleas. Such person that is or is likely to be adversely 381
affected includes a person that provides, or has filed a pending 382
application to provide, within the jurisdiction of the political 383
subdivision, cable service over a cable system or 384
telecommunications service over a cable system or using 385
telecommunications equipment, and includes any other political 386
subdivision in which such allegedly noncomplying political 387
subdivision is, or has filed a pending application to become, 388
respectively, a public cable service provider or a public 389
telecommunications service provider.390

       (C)(1) If an arbitration opinion under section 1332.08 of the 391
Revised Code contains a finding of a violation by a political 392
subdivision of division (A), (B), or (C) of section 1332.04 or 393
division (C) of section 1332.05 of the Revised Code and the 394
political subdivision fails to rectify the violation promptly, and 395
any person adversely affected by the violation substantially 396
prevails in a subsequent civil action against the political397
subdivision under division (B) of this section regarding the 398
violation not promptly rectified, the political subdivision is 399
liable to the person for the person's costs and reasonable400
attorney's fees incurred in connection with the civil action.401

       (2) If an arbitration opinion under section 1332.08 of the 402
Revised Code does not contain a finding of a violation by a 403
political subdivision of division (A), (B), or (C) of section404
1332.04 or division (C) of section 1332.05 of the Revised Code and 405
the political subdivision substantially prevails in a subsequent 406
civil action brought against it under division (B) of this section407
respecting an alleged violation, the complainants in the civil 408
action are liable to the political subdivision for its costs and 409
reasonable attorney's fees incurred in connection with the civil410
action.411

       (3) The court shall exercise its equitable discretion in 412
determining the appropriate amount of attorney's fees to be 413
awarded under division (C)(1) or (2) of this section. In414
exercising that discretion, the court shall consider at least all 415
of the following: the degree to which the party partially 416
prevailed, the reasonableness of the party's action, the 417
reasonableness of the arbitrator's decision, the effort or lack of 418
effort of the parties to reach a settlement, and the good faith or 419
lack of good faith of the parties.420

       Section 2. That existing sections 1332.01, 1332.02, 1332.03, 421
1332.04, 1332.05, 1332.06, 1332.07, and 1332.09 of the Revised 422
Code are hereby repealed.423