S T A T E O F N E W Y O R K
________________________________________________________________________
138
2019-2020 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2019
___________
Introduced by M. of A. CAHILL, COLTON, QUART, JAFFEE, HYNDMAN, LAVINE,
ENGLEBRIGHT, ZEBROWSKI, CRESPO, WRIGHT, D. ROSENTHAL, D'URSO, HEVESI,
MOSLEY, SIMON, BRONSON, GUNTHER, MONTESANO, AUBRY, BICHOTTE, PEOPLES-
STOKES, NIOU, HUNTER -- Multi-Sponsored by -- M. of A. DE LA ROSA,
LENTOL, THIELE -- read once and referred to the Committee on Corpo-
rations, Authorities and Commissions
AN ACT to amend the public service law and the state finance law, in
relation to state contracts being only with internet service providers
compliant with net neutrality and establishes a revolving fund for the
establishment of municipal internet service providers; and making an
appropriation therefor
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "NYS Net
Neutrality Protection Act".
§ 2. Subdivision 1 of section 5 of the public service law is amended
by adding a new paragraph i to read as follows:
I. TO EVERY BROADBAND INTERNET LINE WHICH LIES WHOLLY WITHIN THE STATE
AND THAT PART WITHIN THE STATE OF NEW YORK OF EVERY BROADBAND INTERNET
LINE WHICH LIES PARTLY WITHIN AND PARTLY WITHOUT THE STATE AND TO THE
PERSONS OR CORPORATIONS OWNING, LEASING OR OPERATING ANY SUCH BROADBAND
INTERNET LINE.
§ 3. Section 5 of the public service law is amended by adding a new
subdivision 7 to read as follows:
7. THE COMMISSION SHALL REQUIRE ANY PERSON ENGAGED IN THE PROVISION OF
BROADBAND INTERNET ACCESS SERVICE IN NEW YORK STATE TO REPORT TO THE
COMMISSION, AND PUBLICLY DISCLOSE ANNUALLY, ACCURATE INFORMATION REGARD-
ING THE NETWORK MANAGEMENT PRACTICES, PERFORMANCE, AND COMMERCIAL TERMS
OF ITS BROADBAND INTERNET ACCESS SERVICES SUFFICIENT FOR CONSUMERS TO
MAKE INFORMED CHOICES REGARDING USE OF SUCH SERVICES AND FOR CONTENT,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03122-01-9
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APPLICATION, SERVICE, AND DEVICE PROVIDERS TO DEVELOP, MARKET, AND MAIN-
TAIN INTERNET OFFERINGS.
§ 4. Subdivision 1 of section 165 of the state finance law is amended
by adding three new paragraphs f, g and h to read as follows:
F. A "NET NEUTRAL SOURCE OF INTERNET SERVICES" SHALL MEAN AN INTERNET
SERVICE PROVIDER WHO ADHERES TO THE PRINCIPLES OF NET NEUTRALITY.
G. A "NON-NET NEUTRAL SOURCE OF INTERNET SERVICES" SHALL MEAN AN
INTERNET SERVICE PROVIDER WHO VIOLATES ANY OF THE PRINCIPLES OF NET
NEUTRALITY.
H. "THE PRINCIPLES OF NET NEUTRALITY" SHALL MEAN THE RULES AND REGU-
LATIONS UNDER THE OPEN INTERNET REPORT AND ORDER ON REMAND, DECLARATORY
RULING, AND ORDER BY THE FEDERAL COMMUNICATIONS COMMISSION RELEASED
MARCH TWELFTH, TWO THOUSAND FIFTEEN, GN DOCKET NO. 14-28.
§ 5. Section 165 of the state finance law is amended by adding a new
subdivision 9 to read as follows:
9. PROHIBITION ON PURCHASE OF INTERNET SERVICES FROM A NON-NET NEUTRAL
SOURCE OF INTERNET SERVICES.
A. (I) WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS (II) AND
(III) OF THIS PARAGRAPH, AND IN ACCORDANCE WITH SUCH SUBPARAGRAPHS, THE
STATE AND ANY GOVERNMENTAL AGENCY OR POLITICAL SUBDIVISION OR PUBLIC
BENEFIT CORPORATION OR MUNICIPALITY OF THE STATE SHALL NOT CONTRACT FOR
THE SUPPLY OF INTERNET SERVICES WITH ANY CONTRACTOR WHO DOES NOT AGREE
TO STIPULATE TO THE FOLLOWING, IF THERE IS ANOTHER CONTRACTOR WHO WILL
CONTRACT TO SUPPLY INTERNET SERVICES OF COMPARABLE QUALITY AT A COMPARA-
BLE PRICE OR COST, THE CONTRACTOR AND ANY INDIVIDUAL OR LEGAL ENTITY IN
WHICH THE CONTRACTOR HOLDS A TEN PERCENT OR GREATER OWNERSHIP INTEREST
AND ANY INDIVIDUAL OR LEGAL ENTITY THAT HOLDS A TEN PERCENT OR GREATER
OWNERSHIP INTEREST IN THE CONTRACTOR SHALL MAKE LAWFUL STEPS IN GOOD
FAITH TO CONDUCT ANY BUSINESS OPERATIONS AS A NET NEUTRAL SOURCE OF
INTERNET SERVICES.
(II) IN THE CASE OF CONTRACTS LET BY A COMPETITIVE PROCESS, WHENEVER
THE RESPONSIVE AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE OR BEST
VALUE OFFER HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET FORTH IN
THIS SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO HAS
AGREED TO STIPULATE TO SUCH CONDITIONS HAS SUBMITTED AN OFFER SHALL
DETERMINE THAT THE CONTRACT BE AWARDED TO THE LOWEST PRICE OR BEST VALUE
OFFER FOR INTERNET SERVICES FROM A NET NEUTRAL SOURCE OF INTERNET
SERVICES.
(III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS
INTERNET SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN THE
DISCRETIONARY BUYING THRESHOLD AS SPECIFIED IN SECTION ONE HUNDRED
SIXTY-THREE OF THIS ARTICLE, THE CONTRACTING ENTITY SHALL NOT AWARD TO A
PROPOSED CONTRACTOR WHO HAS NOT AGREED TO STIPULATE TO THE CONDITIONS
SET FORTH IN THIS SUBDIVISION UNLESS THE ENTITY SEEKING TO USE THE
INTERNET SERVICES DETERMINES THAT THE INTERNET SERVICES ARE NECESSARY
FOR THE ENTITY TO PERFORM ITS FUNCTIONS AND THERE IS NO OTHER RESPONSI-
BLE CONTRACTOR WHO WILL SUPPLY INTERNET SERVICES OF COMPARABLE QUALITY
AT A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING AND
SHALL BE PUBLIC DOCUMENTS.
B. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP-
ULATION REQUIRED BY THIS SUBDIVISION IS IN VIOLATION THEREOF, THE
CONTRACTING ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE CONTRAC-
TOR AN OPPORTUNITY TO RESPOND. IF THE CONTRACTING ENTITY FINDS THAT A
VIOLATION HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE APPROPRIATE
AND PROVIDED FOR BY LAW, RULE OR CONTRACT, INCLUDING, BUT NOT LIMITED
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TO, IMPOSING SANCTIONS, SEEKING COMPLIANCE, RECOVERING DAMAGES OR
DECLARING THE CONTRACTOR IN DEFAULT.
C. AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT INCLUDE
CONTRACTS WITH GOVERNMENTAL AND NON-PROFIT ORGANIZATIONS, CONTRACTS
AWARDED PURSUANT TO EMERGENCY PROCUREMENT PROCEDURES OR CONTRACTS,
RESOLUTIONS, INDENTURES, DECLARATIONS OF TRUST OR OTHER INSTRUMENTS
AUTHORIZING OR RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD, SALE OR
PURCHASE OF BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR OTHER FISCAL
OBLIGATIONS, PROVIDED THAT THE POLICIES OF THIS SUBDIVISION SHALL BE
CONSIDERED WHEN SELECTING A CONTRACTOR TO PROVIDE FINANCIAL OR LEGAL
ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH
ACTIVITIES.
D. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO CONTRACTS FOR
WHICH THE STATE OR OTHER CONTRACTING ENTITY RECEIVES FUNDS ADMINISTERED
BY THE UNITED STATES, EXCEPT TO THE EXTENT CONGRESS HAS DIRECTED TO NOT
WITHHOLD FUNDS FROM STATES AND LOCALITIES THAT CHOOSE TO IMPLEMENT
SELECTIVE PURCHASING POLICIES BASED ON AN AGREEMENT TO COMPLY WITH THE
PRINCIPLES OF NET NEUTRALITY, OR TO THE EXTENT THAT SUCH FUNDS ARE NOT
OTHERWISE WITHHELD BY CONGRESS.
§ 6. The state finance law is amended by adding a new section 99-ff to
read as follows:
§ 99-FF. MUNICIPAL INTERNET SERVICE PROVIDER REVOLVING LOAN FUND. 1.
THERE IS HEREBY ESTABLISHED IN THE JOINT CUSTODY OF THE COMPTROLLER AND
THE PUBLIC SERVICE COMMISSION A FUND TO BE KNOWN AS THE "MUNICIPAL
INTERNET SERVICE PROVIDER REVOLVING LOAN FUND". SUCH FUND SHALL CONSIST
OF MONEYS MADE AVAILABLE PURSUANT TO APPROPRIATION AND ANY OTHER SOURCES
IN ORDER TO PROVIDE SUPPORT FOR MUNICIPALITIES ATTEMPTING TO CREATE
THEIR OWN INTERNET SERVICE PROVIDER.
2. THE ACCOUNT SHALL CONSIST OF ALL MONEYS APPROPRIATED FOR ITS
PURPOSE, ALL MONEYS TRANSFERRED TO SUCH ACCOUNT PURSUANT TO LAW, AND ALL
MONEYS REQUIRED BY THIS SECTION OR ANY OTHER LAW TO BE PAID INTO OR
CREDITED TO THIS ACCOUNT, INCLUDING ALL MONEYS RECEIVED BY THE ACCOUNT
OR DONATED TO IT, PAYMENTS OF PRINCIPAL AND INTEREST ON LOANS MADE FROM
THE ACCOUNT, AND ANY INTEREST EARNINGS WHICH MAY ACCRUE FROM THE INVEST-
MENT OR REINVESTMENT OF MONEYS FROM THE ACCOUNT.
3. MONEYS OF THE ACCOUNT, WHEN ALLOCATED, SHALL BE AVAILABLE TO THE
PUBLIC SERVICE COMMISSION TO MAKE LOANS AS PROVIDED IN THIS SECTION. UP
TO FIVE PERCENT OF THE MONEYS OF THE ACCOUNT OR TWO HUNDRED FIFTY THOU-
SAND DOLLARS, WHICHEVER IS LESS, MAY BE USED TO PAY THE EXPENSES,
INCLUDING PERSONAL SERVICE AND MAINTENANCE AND OPERATION, IN CONNECTION
WITH THE ADMINISTRATION OF SUCH LOANS.
4. (A) THE PUBLIC SERVICE COMMISSION MAY MAKE, UPON APPLICATION DULY
MADE, UP TO THE AMOUNTS AVAILABLE BY APPROPRIATION, LOANS FOR ANY AND
ALL COSTS ASSOCIATED WITH THE CREATION OF A MUNICIPALLY OWNED BROADBAND
INTERNET SERVICE PROVIDER.
(B) THE PUBLIC SERVICE COMMISSION SHALL HAVE THE POWER TO MAKE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER TO EFFECTUATE THE
PURPOSES OF THIS SECTION.
5. (A) APPLICATION FOR LOANS MAY BE MADE BY A TOWN, VILLAGE, CITY OR
COUNTY PROVIDED THAT THE APPLICATION IS OTHERWISE CONSISTENT WITH ITS
RESPECTIVE POWERS. APPLICATIONS MAY ALSO BE SUBMITTED JOINTLY BY MULTI-
PLE APPLICANTS PROVIDED THAT THE APPLICATION IS OTHERWISE CONSISTENT
WITH EACH APPLICANT'S RESPECTIVE POWERS.
(B) EVERY APPLICATION SHALL BE IN A FORM ACCEPTABLE TO THE PUBLIC
SERVICE COMMISSION. EVERY APPLICATION SHALL ACCURATELY REFLECT THE
CONDITIONS WHICH GIVE RISE TO THE PROPOSED EXPENDITURE AND ACCURATELY
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REFLECT THE ABILITY OF THE APPLICANT TO MAKE SUCH AN EXPENDITURE WITHOUT
THE PROCEEDS OF A LOAN UNDER THIS SECTION.
(C) (I) THE PUBLIC SERVICE COMMISSION SHALL GIVE PREFERENCE TO THOSE
APPLICATIONS WHICH DEMONSTRATE THE GREATEST NEED, JOINT APPLICATIONS,
AND TO THOSE APPLICATIONS THE PROCEEDS OF WHICH WILL BE APPLIED TOWARD
ATTAINING COMPLIANCE WITH FEDERAL AND STATE LAWS AND MAY DISAPPROVE ANY
APPLICATION WHICH CONTAINS NO ADEQUATE DEMONSTRATION OF NEED OR WHICH
WOULD RESULT IN INEQUITABLE OR INEFFICIENT USE OF THE MONEYS IN THE
ACCOUNT.
(II) IN MAKING DETERMINATIONS ON LOAN APPLICATIONS, THE PUBLIC SERVICE
COMMISSION SHALL ASSURE THAT LOAN FUND MONEYS ARE EQUITABLY DISTRIBUTED
AMONG ALL GEOGRAPHICAL AREAS OF THE STATE.
(D) THE PUBLIC SERVICE COMMISSION SHALL, TO THE MAXIMUM EXTENT FEASI-
BLE, AND CONSISTENT WITH THE OTHER PROVISIONS OF THIS SECTION, SEEK TO
PROVIDE THAT LOANS AUTHORIZED BY THIS SECTION REFLECT AN APPROPRIATE
GEOGRAPHIC DISTRIBUTION, ARE DISTRIBUTED EQUITABLY AND ENCOURAGE
REGIONAL COOPERATION.
§ 7. The sum of two hundred fifty million dollars ($250,000,000), or
so much thereof as may be necessary, is hereby appropriated from any
moneys in the state treasury in the general fund to the credit of the
state purposes account for the initial capital of the municipal internet
service provider revolving loan fund in carrying out the provisions of
this act. Such sum shall be payable on the audit and warrant of the
state comptroller on vouchers certified or approved in the manner
provided by law. No expenditure shall be made from this appropriation
until a certificate of approval of availability shall have been issued
by the director of the budget and filed with the state comptroller and a
copy filed with the chairman of the senate finance committee and the
chairman of the assembly ways and means committee. Such certificate may
be amended from time to time by the director of the budget and a copy of
each such amendment shall be filed with the state comptroller, the
chairman of the senate finance committee and the chairman of the assem-
bly ways and means committee.
§ 8. This act shall take effect immediately.