SENATE BILL NO. 332

INTRODUCED BY P. EKEGREN

A BILL FOR AN ACT ENTITLED: "AN ACT PROHIBITING A GOVERNMENTAL ENTITY AND ITS POLITICAL SUBDIVISIONS FROM COMPETING WITH A TELECOMMUNICATIONS SERVICES PROVIDER; AMENDING SECTION 69-3-803, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. State competition with telecommunications carriers prohibited -- action for restraint, costs, and fees. (1) Except as provided in subsection (3), a governmental entity may not directly or through another state or local governmental entity, political subdivision, as defined in 2-9-101, or special use district engage in the sale, offer for sale, delivery, dispensing, or distribution of telecommunications services, cable television, or internet services to the public that are also offered by a telecommunications carrier, cable television provider, or internet services provider unless specifically authorized by law.

(2) A telecommunications carrier, cable television provider, or internet services provider against which any state or local governmental entity is competing in violation of subsection (1) may bring a civil action in accordance with Title 27, chapter 19, in a district court of the state of Montana for restraint of the violation. A telecommunications carrier that substantially prevails in an action brought pursuant to this section may also recover its costs and reasonable attorney fees.

(3) This section does not apply to a governmental entity, political subdivision, or special use district providing telecommunications services for its own use such as those provided under 20-32-101.

Section 2. Section 69-3-803, MCA, is amended to read:

"69-3-803. Definitions. As used in this part, the following definitions apply:

(1) "Commission" means the public service commission.

(2) "Eligible telecommunications carrier" means a telecommunications provider designated by the commission under 69-3-840.

(3) "Fund" means the universal service fund established in 69-3-842.

(4) "Governmental entity" means a department, division, bureau, office, commission, council, or board of state government and includes state institutions, community colleges, the state university system, and any political subdivision of the state.

(5) "Incumbent local exchange carrier" means, with respect to an area, the local exchange carrier that:

(a) on February 8, 1996, provided telephone exchange service in the area; and

(b) on February 8, 1996, was considered to be a member of the exchange carrier association pursuant to 47 CFR 69.601(b) or is a person or entity that, after that date, became a successor or assign of a member of the exchange carrier association.

(6) "Private telecommunications service" means a system, including the construction, maintenance, or operation of the system, for the provision of telecommunications service or any portion of the service, by a person or entity for the sole and exclusive use of that person or entity and not for resale, directly or indirectly. For purposes of this definition, the term "person or entity" includes a corporation and all of its affiliates and subsidiaries if the corporation, affiliates, and subsidiaries have a common ownership or control of 80% of the outstanding voting shares.

(7) (a) "Regulated telecommunications service" means two-way switched, voice-grade access and transport of communications originating and terminating in this state and nonvoice-grade access and transport if intended to be converted to or from voice-grade access and transport.

(b) The term does not include the provision of terminal equipment used to originate or terminate the regulated service, private telecommunications service, one-way transmission of television signals, cellular communication, or provision of radio paging or mobile radio services.

(8) "Retail revenue" means the gross Montana revenue from telecommunications services that originate or terminate in Montana and are billed for a service address in Montana, excluding revenue from the resale of telecommunications services to another telecommunications services provider that uses the telecommunications services to provide telecommunications services to the ultimate retail consumer who originates or terminates the transmission.

(9) "Rural telephone company" means a local exchange carrier operating entity to the extent that the entity:

(a) provides common carrier service to any local exchange carrier study area that does not include either:

(i) all or any part of an incorporated place of 10,000 inhabitants or more based on the most recently available population statistics of the United States bureau of the census; or

(ii) any territory, incorporated or unincorporated, included in an urbanized area, as defined by the United States bureau of the census as of August 10, 1993;

(b) provides telephone exchange service, including exchange access, to fewer than 50,000 access lines;

(c) provides telephone exchange service to any local exchange carrier study area with fewer than 100,000 access lines; or

(d) has less than 15% of its access lines in communities of more than 50,000 on February 8, 1996.

(10) "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing without a change in the form or content of the information upon receipt.

(11) "Telecommunications carrier" or "carrier" means any provider of telecommunications services. A person providing other products and services in addition to telecommunications services is considered a telecommunications carrier only to the extent that it is engaged in providing telecommunications services. The term does not mean aggregators of telecommunications services as defined in 47 U.S.C. 226."

NEW SECTION. Section 3. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 69, chapter 3, part 8, and the provisions of Title 69, chapter 3, part 8, apply to [section 1].

NEW SECTION. Section 4. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

NEW SECTION. Section 5. Effective date. [This act] is effective on passage and approval.

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