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H*3840 Session 116 (2005-2006)
H*3840(Rat #0192, Act #0134 of 2005) General Bill, By Sandifer and Cato
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
58-9-200 SO AS TO DEFINE THE TERMS "COMMUNICATIONS SERVICE PROVIDER" AND
"COMMUNICATIONS SERVICE" FOR PURPOSES OF SECTIONS 58-9-295 AND 58-9-297, ADDED
BELOW; BY ADDING SECTION 58-9-295 SO AS TO PROVIDE THAT NO COMMUNICATIONS
SERVICE PROVIDER OR A PARENT COMPANY, SUBSIDIARY, OR AFFILIATE OF A
COMMUNICATIONS SERVICE PROVIDER SHALL ENTER INTO ANY CONTRACT OR AGREEMENT
THAT 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 THAT OFFERS OR GRANTS INCENTIVES OR REWARDS TO AN OWNER OF
REAL PROPERTY 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, TO PROVIDE EXCEPTIONS, TO PROVIDE CIVIL
PENALTIES FOR VIOLATION, AND TO PROVIDE THAT ALL CONTRACTS MADE ON OR AFTER
THE EFFECTIVE DATE OF THIS SECTION ARE VOID AND UNENFORCEABLE; BY ADDING
SECTION 58-9-297 SO AS TO PROVIDE THAT NO OTHER COMMUNICATIONS SERVICE
PROVIDER, INCLUDING A CARRIER OF LAST RESORT, SHALL BE OBLIGATED TO PROVIDE
ANY COMMUNICATIONS SERVICE TO THE OCCUPANTS OF A MULTI-TENANT BUSINESS OR
RESIDENTIAL PROPERTY IF THE  OWNER OR DEVELOPER PERMITS ONLY ONE COMMUNICATIONS
SERVICE PROVIDER TO INSTALL ITS FACILITIES OR EQUIPMENT DURING THE
CONSTRUCTION PHASE OF THE PROPERTY, ACCEPTS OR AGREES TO ACCEPT INCENTIVES OR
REWARDS FROM A COMMUNICATIONS SERVICE PROVIDER, COLLECTS FROM THE OCCUPANTS OF
THE PROPERTY CHARGES FOR THE PROVISION OF COMMUNICATIONS SERVICE TO THE
OCCUPANTS, OR ENTERS INTO AN AGREEMENT WITH A COMMUNICATIONS SERVICE PROVIDER
THAT IS IN VIOLATION OF SECTION 58-9-295; AND TO PROVIDE THAT THE ABOVE
PROVISIONS OF THIS ACT SHALL BECOME VOID AND UNENFORCEABLE UNDER CERTAIN
CONDITIONS. - ratified title
04/05/05 House Introduced and read first time HJ-6
04/05/05 House Referred to Committee on Labor, Commerce and
Industry HJ-7
04/20/05 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-1
04/27/05 House Amended HJ-29
04/27/05 House Read second time HJ-32
04/28/05 House Read third time and sent to Senate HJ-10
04/28/05 Scrivener's error corrected
05/03/05 Senate Introduced and read first time SJ-25
05/03/05 Senate Referred to Committee on Judiciary SJ-25
05/25/05 Senate Recalled from Committee on Judiciary SJ-13
05/25/05 Senate Amended SJ-13
05/25/05 Senate Read second time SJ-13
05/26/05 Senate Read third time and returned to House with
amendments SJ-307
05/27/05 Scrivener's error corrected
06/01/05 House Concurred in Senate amendment and enrolled HJ-46
06/02/05 Ratified R 192
06/07/05 Signed By Governor
06/13/05 Copies available
06/13/05 Effective date See Act for Effective Date
06/16/05 Act No. 134
H. 3840
(A134, R192, H3840)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 58-9-200 SO AS TO DEFINE THE TERMS "COMMUNICATIONS SERVICE PROVIDER" AND "COMMUNICATIONS SERVICE" FOR PURPOSES OF SECTIONS 58-9-295 AND 58-9-297, ADDED BELOW; BY ADDING SECTION 58-9-295 SO AS TO PROVIDE THAT NO COMMUNICATIONS SERVICE PROVIDER OR A PARENT COMPANY, SUBSIDIARY, OR AFFILIATE OF A COMMUNICATIONS SERVICE PROVIDER SHALL ENTER INTO ANY CONTRACT OR AGREEMENT THAT 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 THAT OFFERS OR GRANTS INCENTIVES OR REWARDS TO AN OWNER OF REAL PROPERTY 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, TO PROVIDE EXCEPTIONS, TO PROVIDE CIVIL PENALTIES FOR VIOLATION, AND TO PROVIDE THAT ALL CONTRACTS MADE ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION ARE VOID AND UNENFORCEABLE; BY ADDING SECTION 58-9-297 SO AS TO PROVIDE THAT NO OTHER COMMUNICATIONS SERVICE PROVIDER, INCLUDING A CARRIER OF LAST RESORT, SHALL BE OBLIGATED TO PROVIDE ANY COMMUNICATIONS SERVICE TO THE OCCUPANTS OF A MULTI-TENANT BUSINESS OR RESIDENTIAL PROPERTY IF THE OWNER OR DEVELOPER PERMITS ONLY ONE COMMUNICATIONS SERVICE PROVIDER TO INSTALL ITS FACILITIES OR EQUIPMENT DURING THE CONSTRUCTION PHASE OF THE PROPERTY, ACCEPTS OR AGREES TO ACCEPT INCENTIVES OR REWARDS FROM A COMMUNICATIONS SERVICE PROVIDER, COLLECTS FROM THE OCCUPANTS OF THE PROPERTY CHARGES FOR THE PROVISION OF COMMUNICATIONS SERVICE TO THE OCCUPANTS, OR ENTERS INTO AN AGREEMENT WITH A COMMUNICATIONS SERVICE PROVIDER THAT IS IN VIOLATION OF SECTION 58-9-295; AND TO PROVIDE THAT THE ABOVE PROVISIONS OF THIS ACT SHALL BECOME VOID AND UNENFORCEABLE UNDER CERTAIN CONDITIONS.
Be it enacted by the General Assembly of the State of South Carolina:
Definitions
SECTION 1. Article 3, Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-200. As used in Sections 58-9-295 and 58-9-297:
(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 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, including without limitation basic local exchange telephone service as defined in Section 58-9-10(9);
(b) voice over internet protocol, or similar voice or voice replacement service;
(c) data service;
(d) video service; or
(e) any information service."
Prohibited agreements; civil penalties
SECTION 2. Article 3, 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 a communications service 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)(1) Nothing in this section prohibits a communications service provider and a user or prospective user of communications service from entering into an agreement with respect to the user or prospective user's own communications service.
(2) Nothing in this section prohibits an owner of real property or the owner's agent from entering into agreements with one or more communications service providers for the purpose of marketing a communications service to the owner of real property or to the tenants of real property, so long as such agreements are not in violation of subsection (A).
(3) This section does not affect a franchise agreement or other agreement with a municipality concerning the use of public streets, public rights-of-way, or other public property.
(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."
Communications service not required
SECTION 3. Article 3, Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-297. (A) No other communications service provider, 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:
(1) permits only one communications service provider to install its facilities or equipment during the construction phase of the property;
(2) accepts or agrees to accept incentives or rewards from a communications service provider to the owner, developer, or occupants of the property that are contingent upon the provision of communications service by that communications service 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 communications service provider is relieved of an obligation to provide communications service to occupants of property pursuant to subsection (A), the communications service 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."
Provisions void and unenforceable
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 communications service provider in Section 58-9-200, this act shall become void and unenforceable as to all communications service providers.
Time effective
SECTION 5. This act takes effect forty-five days after being approved by the Governor or forty-five days after the act becomes effective by operation of law as provided in Article IV, Section 21 of the South Carolina Constitution.
Ratified the 2nd day of June, 2005.
Approved the 7th day of June, 2005.
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