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COMMITTEE REPORT
April 20, 2005
H. 3840
S. Printed 4/20/05--H.
Read the first time April 5, 2005.
To whom was referred a Bill (H. 3840) to amend the Code of Laws of South Carolina, 1976, by adding Section 58-9-295 so as to provide that no communications service provider or parent, subsidiary, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-200. As used in this article:
(1) 'communications service provider' means:
(a) a telephone utility as defined in Section 58-9-10(6);
(b) a government-owned telecommunications service provider as defined in Section 58-9-2610(1);
(c) a telephone cooperative as defined in Section 33-46-20(4);
(d) a person or entity providing telephone, voice over internet protocol, similar voice service, or any other voice replacement service, data service, video service or any other information service; or
(e) an entity using or allowing another entity to use its cable, wires, fiber, or any material, facilities or equipment that have the ability to carry voice, data, video or any other information transmissions
'Communications service provider' does not mean a radio common carrier as defined in Section 58-11-10(f).
(2) 'communications service' means
(a) telephone service;
(b) voice over internet protocol, similar voice or voice replacement service;
(c) data service;
(d) video service; or
(e) any other information transmission service."
SECTION 2. Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-295. (A) No communications service provider or a parent company, subsidiary, or affiliate of such a provider shall enter into any contract, agreement, or arrangement, oral or written, with a person or entity that:
(1) requires a person or entity to restrict or limit the ability of any other communications service provider from obtaining easements or rights-of-way for the installation of facilities or equipment to provide communications services in this State or otherwise deny or restrict access to the real property by any other communications service provider; or
(2) offers or grants incentives or rewards to an owner of real property or the owner's agent that are contingent upon restricting or limiting the ability of any other communications service provider from obtaining easements or rights-of-way for the installation of facilities or equipment to provide communications services in this State or otherwise denying or restricting access to the real property by any other communications service provider.
(B) Nothing in this section prohibits a communications service provider and a user or prospective user of communications service from entering into a lawful agreement with respect to the user or prospective user's own communications service.
(C) All contracts, agreements, or arrangements in violation of subsection (A) made on or after the effective date of this section are void and unenforceable.
(D) A communications service provider who violates the provisions of this section is subject to a monetary penalty as provided in Section 58-9-1610. Each day that a contract, agreement, or arrangement prohibited by this section remains in force or effect shall constitute a separate violation as provided in Section 58-9-1620."
SECTION 3. Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-297. (A) No other provider of communications service, including without limitation a carrier of last resort as defined in section 58-9-10(10), shall be obligated to provide any communications service to the occupants of the property described herein if an owner or developer of any multi-tenant business or residential property, including without limitation apartments, condominiums, subdivisions, office buildings, or office parks either:
(1) permits only one provider of communications service to install its facilities or equipment during the construction phase of the property;
(2) accepts or agrees to accept incentives or rewards from a provider of communications service to the owner, developer, or occupants of the property that are contingent upon the provision of communications service by that provider to the exclusion of other providers of communications service;
(3) collects from the occupants of the property charges for the provision of communications service to the occupants in any manner, including without limitation through rent, fees, or dues; or
(4) enters into an agreement with a communications service provider that is in violation of Section 58-9-295.
(B) If any provider of communications services is relieved of an obligation to provide communications service to occupants of property pursuant to subsection (A), the provider may voluntarily provide communications services to the occupants of that property, and the public service commission must not impose any requirements related to the terms, conditions, rates, or availability of this service.
SECTION 4. If, as result of federal law, a finding of a federal administrative agency, or a decision of a federal or state court of competent jurisdiction, this act is deemed to be inapplicable to any person, entity or class of provider that otherwise meets the definition of a communication service provider in Section 58-9-200, this section shall become void and unenforceable as to all communications service providers.
SECTION 5. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
HARRY F. CATO for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 58-9-295 SO AS TO PROVIDE THAT NO COMMUNICATIONS SERVICE PROVIDER OR PARENT, SUBSIDIARY, OR AFFILIATE OF SUCH A PROVIDER MAY ENTER INTO ANY CONTRACT OR AGREEMENT THAT REQUIRES ANOTHER PERSON TO RESTRICT OR LIMIT THE ABILITY OF ANY OTHER COMMUNICATIONS SERVICE PROVIDER FROM OBTAINING EASEMENTS OR RIGHTS-OF-WAY FOR THE INSTALLATION OF FACILITIES OR EQUIPMENT TO PROVIDE COMMUNICATIONS SERVICES IN THIS STATE OR OTHERWISE DENY OR RESTRICT ACCESS TO THE REAL PROPERTY BY ANY OTHER COMMUNICATIONS SERVICE PROVIDER; OR OFFERS OR GRANTS INCENTIVES OR REWARDS TO AN OWNER OF REAL PROPERTY OR THE OWNER'S AGENT THAT ARE CONTINGENT UPON THE PROVISION OF COMMUNICATIONS SERVICE ON THE PREMISES BY A SINGLE COMMUNICATIONS SERVICE PROVIDER, TO PROVIDE EXCEPTIONS, TO DEFINE THE TERM "COMMUNICATIONS SERVICE PROVIDER" FOR THIS PURPOSE, AND TO PROVIDE CIVIL PENALTIES FOR VIOLATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-295. (A) No communications service provider or a parent company, subsidiary, or affiliate of such a provider shall enter into any contract, agreement, or arrangement, oral or written, with a person or entity that:
(1) requires a person or entity to restrict or limit the ability of any other communications service provider from obtaining easements or rights-of-way for the installation of facilities or equipment to provide communications services in this State or otherwise deny or restrict access to the real property by any other communications service provider; or
(2) offers or grants incentives or rewards to an owner of real property or the owner's agent that are contingent upon the provision of communications service on the premises by a single communications service provider.
(B) Nothing in this section prohibits a user or prospective user of communications service from entering into a lawful agreement with a communications service provider with respect to the user or prospective user's own communications service.
(C) All contracts, agreements, or arrangements in violation of subsection (A) made on or after the effective date of this section are void and unenforceable.
(D) Nothing in this section shall prohibit a small local exchange carrier as defined in Section 58-9-10(14) from entering into exclusive provider contracts, arrangements, or agreements, so long as the small local exchange carrier, including its affiliates or subsidiaries does not offer service beyond its service territory and has not received a bona fide request to offer interconnection as described under 47 U.S.C. Section 251(f).
(E) A communications service provider who violates the provisions of this section is subject to a monetary penalty of not less than five hundred nor more than five thousand dollars for each violation and also may be required to pay reasonable attorneys' fees. Each day that a contract, agreement, or arrangement prohibited by this section remains in force or effect shall constitute a separate violation as provided in Section 58-9-1620.
(F) For purposes of this section, 'communications service provider' means a telephone utility as defined in Section 58-9-10(6), a government-owned communications provider as defined in Section 58-9-2610(1), a telephone cooperative as defined in Section 33-46-20(4), or a person or entity providing telephone, voice-over internet protocol, similar voice service, or any other replacement service for voice communication, or allowing another entity to use its facilities for the purpose of providing these services."
SECTION 2. This act takes effect upon approval by the Governor.
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