LEVEL PLAYING FIELD/LOCAL GOV'T COMPETITION.

View NCGA Bill Details2011-2012 Session
House Bill 129 (Public) Filed Thursday, February 17, 2011
TO PROTECT JOBS AND INVESTMENT BY REGULATING LOCAL GOVERNMENT COMPETITION WITH PRIVATE BUSINESS.
Intro. by Avila.

Status: Ch. SL 2011-84 (House Action) (May 21 2011)

Bill History:

H 129/S.L. 2011-84

Bill Summaries:

  • Summary date: May 24 2011 - More information

    AN ACT TO PROTECT JOBS AND INVESTMENT BY REGULATING LOCAL GOVERNMENT COMPETITION WITH PRIVATE BUSINESS. Summarized in Daily Bulletin 2/17/11, 3/23/11, 3/24/11, 3/28/11, 4/27/11, 4/28/11, and 5/2/11. Enacted May 21, 2011. Effective May 21, 2011, except as otherwise provided.


  • Summary date: May 2 2011 - More information

    Senate amendments make the following changes to 4th edition, as amended. Amendment #8 amends new GS 160A-340.6(g) by providing that trade secrets remain confidential as provided in GS 132-1.2.
    Amendment #9 deletes a provision, added by a previous amendment, that allowed public entities located in certain service areas to receive service from a city or joint agency only after complying with the public bidding procedures of GS 143-129.8.


  • Summary date: Apr 28 2011 - More information

    Senate amendment makes the following changes to 4th edition. Amendment # 1 provides that communications services also do not include remote reading of data from utility or parking meters or provisioning energy demand reduction or smart grid services for an electric, water, or sewer system. Amendment # 4 provides that compliance with open bidding procedures for customers outside the service area applies only when the customer is a public entity, and specifies that all public entities in described service areas may receive services from a city or joint agency only after complying with public bidding procedures. Makes other clarifying changes.


  • Summary date: Apr 27 2011 - More information

    Senate committee substitute makes the following changes to 3rd edition.
    Amends the definition for communications service to clarify that the term does not apply to the sharing of data or voice between governmental entities for internal governmental purposes. Amends the definition for high-speed Internet access service to define it as Internet access service with transmission speeds that are equal to or greater than the requirements for basic broadband tier 1 service as defined by the Federal Communications Commission (FCC) for broadband data gathering and reporting.
    Clarifies that the term unserved area as used in subsection (b) of proposed GS 160A-340.2 (exemptions) means a census block as designated by the most recent census of the U.S. Census Bureau, as defined. Provides that a city may petition the FCC to serve multiple contiguous unserved areas in the same proceeding. Also provides that for the purposes of subsection (c), corporate limits means the corporate limits of the city as of April 1, 2011, or as expanded through annexation. Identifies the specific service areas for the joint agency operated by the cities of Davidson and Mooresville, for the city of Salisbury, and for the city of Wilson. Provides that the exemptions provided in the statute do not exempt a city or joint agency from laws and rules that generally apply to governmental services, including prohibitions against discrimination. Provides that a city subject to the exemption in subsection (c) of proposed GS 160A-340.2, which provides communications service to a customer outside of the limits specified in subsection (c), has 30 days from the date of notice or discovery of the action to stop providing service to the customer without losing the exemption.
    Provides that the special election that a city must hold before incurring debt for constructing a communications system must be on the question of whether the city may provide communications service (was, on the question of whether the city should incur the debt for the proposed purposes). Provides that if the majority of the votes cast are in favor of providing communications service (was, in favor of the city incurring the debt) then the city may incur the debt for the service. If the majority of votes oppose the city providing communications service, then the city cannot incur the debt.
    Makes technical corrections and other clarifying changes.


  • Summary date: Mar 28 2011 - More information

    House amendments makes the following changes to 2nd edition, as amended.
    Amendment #4 amends proposed GS 160A-340.1(a)(8) (concerning requirements of a city- owned communications service provider in setting the price for communications services) to allow the city to amortize the capital assets of the communications system over the assets’ useful life in accordance with generally accepted principles of governmental accounting.
    Amendment #5 further amends proposed GS 160A-340.2(c), which was previously amended by Amendment #1, to provide that the specified statutes do not apply to a city or joint agency providing communications service as of January 1, 2011, provided the city or joint agency limits the provision of communications services to any one or more of the listed services (was, limits the provision of communications service to the specified services).


  • Summary date: Mar 24 2011 - More information

    House amendment makes the following changes to 2nd edition.
    Provides that the proposed provisions regarding city-owned communications service provider requirements, notice and public hearing, financing, taxes and payment in lieu of taxes, and public-private partnerships for communications service, also do not apply to a city or joint agency providing communications service as of January 1, 2011, providing the city or joint agency limits the provisions of communications service to (1) persons within the corporate limits of the city providing the communications service, or (2) existing customers of the communications service as of April 1, 2011. Requires that service to customers outside the service area of the city or joint agency comply with the open bidding procedures of Article 8 of GS Chapter 143 when the existing contract service expires or terminates. Makes other technical and conforming changes.


  • Summary date: Mar 23 2011 - More information

    House committee substitute makes the following changes to 1st edition.
    Amends the definition of communications service to clarify that (1) sharing data between governmental entities for governmental purposes and (2) providing free services to the public or a subset of the public are not considered to be providing communications service.
    Amends GS 160A-340.1, setting the requirements for a city owned communications service provider as follows. Subdivision (2) of proposed GS 160A-340.1(a) requires a city-owned communications service provider to prepare and publish an independent annual report and audit. Amends subdivision (2) to provide that an annual independent audit conducted under GS 159-34 and submitted to the Local Government Commission satisfies the audit requirement of this subdivision. Restricts the provision of communications service by a city-owned service provider to within the corporate limits (was, within the jurisdictional boundaries) of the city that is providing the communications service. Deletes the requirement that a city-owned communications service provider must provide nondiscriminatory access to other permanent distribution facilities. Prohibits the city from airing advertisements or other promotions for the city on a public, educational, or governmental access channel that the city requires another communications service provider to carry. Deletes provision providing that proposed subdivisions (7), (8),and (9) do not apply to communications services provided by a city on or before January 1, 2011.
    Makes clarifying and conforming changes to the exemptions from the proposed provisions of Article 16A regarding the provision of communications services by cities. Proposed subsection (b) of new GS 160A-340.2 provides that the provisions regarding city-owned communications service provider requirements, financing, and taxes do not apply to the provision of communications service in an unserved area. Redefines an unserved area to mean a geographical area in which at least 50% (was, 90%) of households either have no access to high speed Internet service or have access to high-speed Internet service only via a satellite provider.
    Provides that the proposed provisions regarding city-owned communications service provider requirements, notice and public hearing, financing, taxes and payment in lieu of taxes, and public-private partnerships for communications service, do not apply to a city or joint agency providing communications service as of January 1, 2011, however requires the city or joint agency to limit the provision of communications service to specified service area boundaries.
    Clarifies that the notice and public hearing requirements do not apply to the repair, rebuilding, replacement, or improvement (was, repair or improvement) of an existing communications network or equipment relating to an existing network.
    Restricts a city or joint agency from entering into certain purchasing or financing contracts (was, also refinancing contracts) unless it complies with the provisions of proposed subsection (b) of new GS 160A-340.4 (financing). Prohibits a city from incurring debt to construct a communications system without first holding a special election under GS 163-287 on the question as to whether the city should incur the debt to build the communications system. Permits the city to provide the communications service if a majority of votes cast in the special election are in favor of incurring the debt. Does not prohibit the city for revising its plan and having an additional special election before offering the service. Provides that a special election required under GS Chapter 159 as a condition to issuing bonds will satisfy the requirements of this section.
    Requires a city-owned communications provider to provide requested information to the Secretary of Revenue necessary to calculate the assessment to be made in lieu of taxes. Requires the Department of Revenue to inform each city-owned communications provider of the amount of the assessment by January 1 of each year and requires the city-owned communications service provider to make payment by March 15 of each year.
    Directs a city to solicit proposals from private businesses prior to the city engaging in constructing a communications network. Provides criteria for the city to issue requests for proposals including notice requirements. Provides factors for the city to consider in evaluating the proposals. Requires all proposals to be sealed and opened in public. Provides that if the city is unable to successfully negotiate the terms of a contact with the most responsive proposer within 60 days of opening the proposal, the city may enter into negotiations with the next most responsive proposer if such a proposer exists. Allows a city unable to successfully negotiate the terms of a contract with the next most responsive proposer within 60 days to proceed under proposed Article 16A of GS Chapter 160A to provide communications services.
    Amends GS 105-164.14 to provide that a city subject to proposed GS 160A-340.5 is not allowed a refund of sales and use tax paid by the city for purchases related to providing communications services as defined in proposed Article 16A. Effective when the act becomes law and applies to sales made on or after that date.
    Provides that GS 62-3(23) as amended in this act is not to be construed to change the regulatory nature or requirements applicable to any particular service that is currently regulated by the North Carolina Utilities Commission under GS Chapter 62.
    Amends GS 159-175.10 to provide that the additional requirements for reviewing city financing applications do not apply to the repair, rebuilding, replacement, or improvement of an existing communications network or equipment relating to an existing network, but do apply to the expansion of an existing network.
    Makes additional conforming and technical changes.


  • Summary date: Feb 17 2011 - More information

    Adds new Article 16A (Provision of Communications Service by Cities) to GS Chapter 160A to regulate local government competition with private business for purposes as indicated by the title.
    Definitions. Provides definitions for the following terms as used in the proposed Article: (1) city-owned communications service provider, (2) communications network, (3) communications service, (4) high-speed Internet access service, (5) interlocal agreement, and (6) joint agency.
    Requirements. Directs a city-owned communications service provider to meet all of the following specified requirements: (1) compliance with all local, state, and federal laws; (2) establishing one or more separate enterprise funds for the provision of communications service; (3) providing communications service only within the jurisdictional boundaries of the city that is providing the communications service; and (4) providing non-discriminatory access to necessary material, equipment, and facilities to private communications service providers unless the facilities have insufficient capacity for access and capacity cannot be reasonably added to the facilities. These requirements also include prohibiting the city-owned communications service provider from (1) airing ads or other promotions for the city-owned communications service on the city’s public, educational, or governmental access channel and (2) directly or indirectly exercising any power or withholding or delaying the provision of a monopoly utility service to require persons to use or subscribe to a communication service provided by the city-owned communications service provider.
    Provides that the following requirements do not apply to communications service provided by a city on or before January 1, 2011: (1) prohibition against subsidizing the provision of communications service with funds from other non-communications service or other revenue service, (2) prohibition against setting the price of any communications service at an amount less than the actual cost of providing the service, and (3) requiring the city to pay an annual amount equivalent to all taxes and fees paid by a private communications provider to the city’s general fund.
    Does not require a city-owned communications service provider to obtain voter approval under GS 160A-321 prior to the sale or discontinuance of the city’s communications network.
    Exemptions. Exempts a city’s provision of communications service within its jurisdictional boundaries for the city’s internal governmental purposes from the requirements of proposed GS 160A-340.1 (city-owned communications service provider requirements), 160A-340.4 (financing), and 160A-340.5 (taxes; payments in lieu of taxes). Additionally provides that the above proposed statutes do not apply to the provision of communications in unserved areas. Requires filing a petition to the Utilities Commission for a determination that an area is unserved. Defines unserved area as a geographical area in which at least 90% of households have no access to high-speed Internet service or only have access to high-speed Internet service from a satellite provider.
    Notice and public hearing. Directs a city proposing to provide communications service to hold no less than two public hearings that are held no less than 30 days apart. Provides requirements for distributing notice of the public hearings. Provides that private communications service providers may fully participate in the public hearings. Declares that any feasibility study, business plan, or public survey prepared by the city in connection with the proposed communications service project is a public record under GS 132-1.
    Financing. Prohibits a city or joint agency that is subject to the provisions of proposed GS 160A-340.1 (city-owned communications service provider requirements) from entering into a contract under GS 160A-19 (leases) or 160A-20 (security interests) to purchase, finance, or refinance (1) the purchase of property for use in a communication network or (2) the construction of fixtures or improvements for use in a communications network. These provisions do not apply to the repair or improvement of an existing communications network.
    Taxes. Exempts a communications network owned or operated by a city or joint agency from property taxes; instead requires a city that has an ownership share of a communications network and a joint agency owning a network to pay to any county authorized to levy property taxes the amount which would be assessed as taxes on real and personal property in lieu of taxes. Directs a city-owned communications service provider to pay annually to the state an amount in lieu of taxes that would otherwise be due to the state if the service provider was a private communications service provider. Directs the Department of Revenue to set annually the amount of the payment in lieu of taxes. Provides that a city-owned communications service provider is not eligible for a refund under GS 105-164.14(c) (certain governmental entities allowed an annual refund of sales and use tax) for sales and use taxes except to the extent that a private communications service provider would be exempt from taxes.
    Makes conforming changes to GS 62-3 (defining public utility). Makes a conforming change to Article 9A, (Borrowing by Cities for Competitive Purposes) of GS Chapter 159, Subchapter IV, enacting new GS 159-175.10 (additional requirements for review of city financing application; communication service).
    Provides that a city that is a public utility under GS Chapter 62 when this act becomes law is not subject to the provisions of this act when it comes to any of the city’s operations authorized under GS Chapter 62.
    Provides that the provisions of this act are severable.
    Effective when the act becomes law and applies to the provision of communications service by a city or joint agency under Part 1 of Article 20 of GS Chapter 160A on and after the effective date.


Printer-friendly: Click to view