Session of 2000
HOUSE BILL No. 2704
By Committee on Utilities
1-25
9 AN ACT
concerning broadband internet access transport services; re-
10 quiring cable
operators to provide certain access to such services; pro-
11 viding remedies for
violations.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. As used in this act:
15 (a) "Access"
means the ability to make a physical connection to cable
16 operator's facilities at any place where a
cable operator exchanges con-
17 sumer data with any internet service
provider, or at any other technically
18 feasible point selected by the requesting
internet service provider, so as
19 to enable consumers to exchange data over
such facilities with the con-
20 sumers' chosen internet service
provider.
21 (b) "Affiliate"
means a person who, directly or indirectly, owns or
22 controls, is owned or controlled by or is
under common ownership or
23 control with another person. For purposes
of this definition, "own" means
24 to own:
25 (1) An equity or
other financial interest, or the equivalent thereof, of
26 more than 10%; or
27 (2) any
management interest.
28 (c) "Broadband"
means having a capacity in excess of 200 kilobits per
29 second.
30 (d) "Broadband
internet access transport services" means the broad-
31 band transmission of data between a user
and the user's internet service
32 provider's point of interconnection with
the broadband internet access
33 transport provider's facilities.
34 (e) "Cable
operator" has the meaning provided in 47 U.S.C. 522(5),
35 as in effect on the effective date of this
act.
36 (f) "Cable
service" has the meaning provided in 47 U.S.C. 522(7) as
37 in effect on the effective date if this
act.
38 (g) "Franchise"
has the meaning provided in 47 U.S.C. 522(9), as in
39 effect on the effective date of this
act.
40 (h) "Franchising
authority" has the meaning provided in 47 U.S.C.
41 522(10), as in effect on the effective date
of this act.
42 (i) "Internet"
means collectively the myriad of computer and tele-
43 communications facilities, including
equipment and operating software,
2
1 which comprise the interconnected
worldwide network of networks that
2 employ the transmission control
protocol/internet protocol, or any pred-
3 ecessor or successor protocols to
such protocol, to communicate infor-
4 mation of all kinds by wire or
radio.
5
(j) "Internet service provider" means a person who provides a
service
6 that enables users to access content,
information, electronic mail or other
7 services offered over the
internet.
8 Sec.
2. (a) Each cable operator holding a franchise to provide
cable
9 service shall provide any requesting
internet service provider access to
10 the cable operator's broadband internet
access transport services, unbun-
11 dled from the provision of content, on
rates, terms and conditions that
12 are at least as favorable as those on which
it provides such access to itself,
13 to its affiliates or to any other person.
Such access shall be provided at
14 any technically feasible point selected by
the requesting internet service
15 provider. Except as otherwise specifically
required by law, such cable
16 operator shall not restrict the content of
information that a consumer may
17 receive over the internet. These
requirements shall apply to each cable
18 operator and to any other entity to which
the cable operator's franchise
19 may be transferred, assigned or granted or
which may otherwise exercise
20 rights under such cable operator's
franchise.
21 (b) If a cable
operator providing broadband internet access transport
22 services is or shall become subject to more
extensive or different access
23 requirements with respect to the provision
of broadband internet access
24 transport services imposed by or agreed
upon with any other jurisdiction
25 in the United States, any requesting
internet service provider, at its op-
26 tion, may require such cable operator to
comply with such other require-
27 ments in lieu of subsection (a). In such
event, nothing shall alter the
28 applicability of sections 3, 4 and 5, and
amendments thereto.
29 Sec. 3. Any
internet service provider who has been denied access to
30 a cable operator's broadband internet
access transport services in violation
31 of section 2, and amendments thereto, has a
private cause of action to
32 enforce rights in accordance with those
provisions and to seek all other
33 appropriate relief, including, without
limitation, injunctive relief and
34 monetary damages. In such an action, the
prevailing party shall be entitled
35 to recover its reasonable costs, expenses
and attorney fees from the losing
36 party. The "prevailing party' means the
party determined by the court to
37 have most nearly prevailed as a matter of
law, not necessarily the party
38 in whose favor judgment may be entered.
39 Sec. 4. A
violation of section 2, and amendments thereto, shall ren-
40 der the violator liable for a civil penalty
of $50,0000 for each day the
41 violation continues, not to exceed
$10,000,000. Such civil penalty shall be
42 recoverable in an individual action brought
by the internet service pro-
43 vider or the attorney general. In an action
under this section, the internet
3
1 service provider or attorney general
may recover reasonable expenses and
2 investigation fees, as determined by
the court. Civil penalties sued for
3 and recovered by the attorney general
under this section shall be paid
4 into the state general fund.
5 Sec.
5. In addition to any other penalty, remedy or enforcement
6 measures provided for by federal,
state or local law, the attorney general
7 or a franchising authority may bring
an action to enforce the requirements
8 of section 2, and amendments thereto,
and to seek all appropriate relief,
9 including, without limitation,
injunctive relief. In addition, at its option,
10 a franchising authority may require the
cable operator and any requesting
11 internet service provider to submit to
mediation or binding arbitration,
12 or both.
13 Sec. 6. This act shall
take effect and be in force from and after its
14 publication in the statute book.