Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H74 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 2
2	2	HOUSE DOCKET, NO. 215 FILED ON: 1/11/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 74
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Joan Meschino and Mathew J. Muratore
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to modernize funding for community media programming.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Joan Meschino3rd Plymouth1/9/2023Mathew J. Muratore1st Plymouth1/11/2023Josh S. Cutler6th Plymouth1/18/2023Peter Capano11th Essex1/19/2023Lindsay N. Sabadosa1st Hampshire1/25/2023Sally P. Kerans13th Essex1/26/2023Ruth B. Balser12th Middlesex1/26/2023Brian W. Murray10th Worcester1/27/2023James K. Hawkins2nd Bristol1/27/2023Hannah Kane11th Worcester1/30/2023Susan Williams Gifford2nd Plymouth1/30/2023John J. CroninWorcester and Middlesex1/30/2023Danielle W. Gregoire4th Middlesex1/31/2023Jack Patrick Lewis7th Middlesex1/31/2023William C. Galvin6th Norfolk1/31/2023Michael P. Kushmerek3rd Worcester2/1/2023Simon Cataldo14th Middlesex2/1/2023Mindy Domb3rd Hampshire2/2/2023 2 of 2
16	16	Thomas P. Walsh12th Essex2/2/2023Tackey Chan2nd Norfolk2/2/2023James Arciero2nd Middlesex2/2/2023Angelo L. D'Emilia8th Plymouth2/2/2023Natalie M. Higgins4th Worcester2/3/2023Ryan M. Hamilton15th Essex2/3/2023Brian M. Ashe2nd Hampden2/6/2023Jason M. LewisFifth Middlesex2/6/2023David K. Muradian, Jr.9th Worcester2/6/2023David F. DeCoste5th Plymouth2/6/2023Tram T. Nguyen18th Essex2/7/2023Danillo A. Sena37th Middlesex2/7/2023Jennifer Balinsky Armini8th Essex2/7/2023Paul McMurtry11th Norfolk2/8/2023Natalie M. Blais1st Franklin2/8/2023Thomas M. Stanley9th Middlesex2/8/2023Carlos González10th Hampden2/9/2023Marcus S. Vaughn9th Norfolk2/9/2023Jacob R. OliveiraHampden, Hampshire and Worcester2/9/2023Patrick Joseph Kearney4th Plymouth2/9/2023Colleen M. Garry36th Middlesex2/13/2023Sean Garballey23rd Middlesex2/14/2023Denise C. Garlick13th Norfolk2/15/2023James B. EldridgeMiddlesex and Worcester2/16/2023David Allen Robertson19th Middlesex2/16/2023Steven Owens29th Middlesex2/17/2023Daniel Cahill10th Essex2/17/2023Daniel R. Carey2nd Hampshire2/17/2023Smitty Pignatelli3rd Berkshire2/21/2023David M. Rogers24th Middlesex2/21/2023Dylan A. FernandesBarnstable, Dukes and Nantucket2/23/2023Kay Khan11th Middlesex2/23/2023Kate Lipper-Garabedian32nd Middlesex2/23/2023Manny Cruz7th Essex2/23/2023Edward R. Philips8th Norfolk2/24/2023David T. Vieira3rd Barnstable2/28/2023Jonathan D. Zlotnik2nd Worcester3/1/2023 1 of 13
17	17	HOUSE DOCKET, NO. 215 FILED ON: 1/11/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 74
19	19	By Representatives Meschino of Hull and Muratore of Plymouth, a petition (accompanied by
20	20	bill, House, No. 74) of Joan Meschino, Mathew J. Muratore and others for legislation to establish
21	21	a comprehensive statewide policy concerning streaming entertainment services and the recovery
22	22	of municipal costs for the management and maintenance of digital infrastructure. Advanced
23	23	Information Technology, the Internet and Cybersecurity.
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act to modernize funding for community media programming.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. The General Laws of 2020 are hereby amended by inserting after Chapter
33	33	2166A the following chapter:-
34	34	3 Chapter 166B.
35	35	4 Section 1. The purposes of this chapter are to --
36	36	5 (a) establish a comprehensive statewide policy concerning compensation for the use of
37	37	6digital infrastructure in the public rights-of-way;
38	38	7 (b) establish legislative findings that digital infrastructure in the public rights-of-way is of
39	39	8valuable economic and public interest; 2 of 13
40	40	9 (c) establish standards which encourage a competitive environment for growth and
41	41	10development of streaming entertainment services and which assure that streaming entertainment
42	42	11services are responsive to the needs and interests of the local community;
43	43	12 (d) establish guidelines for the exercise of Commonwealth and local authority with
44	44	13respect to the regulation of the commercial use of the public rights-of-way by entities that
45	45	14provide and deliver streaming entertainment services;
46	46	15 (e) assure that streaming entertainment operators are encouraged to provide the widest
47	47	16possible diversity of information sources and services to the public;
48	48	17 (f) establish an orderly process for the Department of Revenue to assess and recover
49	49	18payments from streaming entertainment operators;
50	50	19 (g) establish an orderly process to collect unpaid assessments and monetary fines from
51	51	20non-compliant streaming entertainment operators operating in the Commonwealth;
52	52	21 (h) protect the substantial interest of the Commonwealth in preventing false and
53	53	22deceptive business practices; and,
54	54	23 (i) promote competition among streaming entertainment service operators and minimize
55	55	24regulation that would impose an undue economic burden on streaming entertainment operators.
56	56	25 Section 2. Definitions.
57	57	26 For the purposes of this Act, the following words shall have the following meanings:
58	58	27 “Commonwealth”, the Commonwealth of Massachusetts; 3 of 13
59	59	28 “cable operator”, any entity that is providing cable services under a franchise agreement
60	60	29with a city, town or district and remitting a franchise fee to such city, town or district as
61	61	30permitted by the Cable Communications Policy Act of 1984, 47 U.S.C. § 522, et seq.;
62	62	31 “gross revenues”, all revenue received directly or indirectly by a streaming entertainment
63	63	32operator arising from, attributable to, or in any way derived from the sale of streaming
64	64	33entertainment services in the Commonwealth. The term “gross revenues” shall not include bad
65	65	34debts, investment income, refunded deposits, or any taxes on services furnished by streaming
66	66	35entertainment providers and imposed directly upon any user by the local, state, federal or other
67	67	36governmental unit;
68	68	37 “person”, an individual, partnership, association, joint stock company, trust, corporation,
69	69	38or governmental entity;
70	70	39 “public, educational, or governmental access facilities”, facilities and equipment for the
71	71	40use of channel capacity designated for public, educational, or governmental use;
72	72	41 “streaming entertainment services”, any paid service that provides audio, video, or
73	73	42computer-generated or computer-augmented entertainment and delivers such entertainment via
74	74	43digital infrastructure to users and delivers such services through facilities located at least in part
75	75	44in the public rights-of-way without regard to delivery technology, including internet protocol
76	76	45technology or other intelligences. This definition does not include any cable service defined in
77	77	4647 U.S.C. § 522(6) or any video programming provided by a commercial mobile service
78	78	47provider defined in 47 U.S.C § 332(d) or provided solely as part of, and via, a service that
79	79	48enables users to access content, information, electronic mail, or other services offered over the
80	80	49public internet; 4 of 13
81	81	50 “streaming entertainment operator”, any company, entity, or organization that
82	82	51 (1) provides streaming entertainment services and delivers such entertainment via digital
83	83	52infrastructure provided through facilities located at least in part in the public rights-of-way with
84	84	53regard to delivery technology, including internet technology or other intelligences, and
85	85	54 (2) earns more than two-hundred and fifty thousand dollars (USD $250,000.00) in gross
86	86	55annual revenues from providing such services to users in the Commonwealth;
87	87	56 “video programming”, programming provided by, or generally considered comparable to
88	88	57programming provided by, a television broadcast station.
89	89	58 Section 3. Authority of the Commonwealth to regulate streaming entertainment services
90	90	59and collect compensation for the use of the public rights-of-way.
91	91	60 (a) Pursuant to the authority of the Commonwealth to regulate trade under Section 1 of
92	92	61Chapter 93 and to promote economic competition under Section 4 of Chapter 93, and to regulate
93	93	62business practices for consumer protection under Section 1 of Chapter 93A, the Commonwealth
94	94	63shall regulate the commercial sale of streaming entertainment services to individuals and
95	95	64businesses in the Commonwealth;
96	96	65 (b) pursuant to the authority of the Commonwealth to collect payments from commercial
97	97	66operators doing business with individuals and businesses physically located in the
98	98	67Commonwealth and to levy assessments under Section 1 of Chapter 58, the Commonwealth shall
99	99	68collect payments from the private sector use of the public rights-of-way by imposing an
100	100	69assessment upon streaming entertainment providers; 5 of 13
101	101	70 (c) nothing in this Act shall limit or affect the authority of the Commonwealth or local
102	102	71government or instrumentality thereof regarding ownership and control of public property and
103	103	72public rights-of-way;
104	104	73 (d) no agency of the Commonwealth or local government shall have any authority to
105	105	74regulate the rates charged by any streaming entertainment operator.
106	106	75 Section 4. Imposition and collection of an assessment for the use of the public rights-of-
107	107	76way.
108	108	77 (a) A streaming entertainment operator shall pay an assessment equal to five percent
109	109	78(5%) of such streaming entertainment operator’s gross annual revenues derived from the sale or
110	110	79provision of streaming entertainment services to individuals and businesses in the
111	111	80Commonwealth.
112	112	81 (b) The assessment authorized in this section shall be for each year, or part of each year,
113	113	82that such streaming entertainment operator is engaged in the sale of streaming entertainment
114	114	83services to individuals and businesses in the Commonwealth.
115	115	84 (c) A streaming entertainment operator shall file bi-annual financial statements reporting
116	116	85its gross revenues derived in such period from the sale of streaming entertainment services to
117	117	86individuals and businesses in the Commonwealth.
118	118	87 (1) Financial statements shall be filed with the Department of Revenue and shall not be
119	119	88classified as a public record pursuant to Section 1 of Chapter 66; 6 of 13
120	120	89 (2) financial statements shall contain a complete accounting and itemization of gross
121	121	90revenues derived from, or pertaining to, the sale or provision of streaming entertainment services
122	122	91to individuals and businesses in the Commonwealth;
123	123	92 (3) financial statements shall conform to Generally-Accepted Accounting Principles
124	124	93(GAAP) and shall be submitted in writing;
125	125	94 (4) for the period inclusive of January 1 through June 30, a streaming entertainment
126	126	95operator shall submit a financial statement on or before August 15. For the period inclusive of
127	127	96July 1 through December 31, a streaming entertainment operator shall submit a financial
128	128	97statement on or before February 15 of the following year;
129	129	98 (5) streaming entertainment operators that fail to submit financial statements within thirty
130	130	99(30) days of the aforestated deadlines shall be assessed a monetary penalty amount equal to one
131	131	100percent (1%) of the gross revenues derived from, or pertaining to, the sale or provision of
132	132	101streaming entertainment services to individuals and businesses residing in the Commonwealth
133	133	102during the applicable time period;
134	134	103 (6) streaming entertainment operators that fail to submit financial statements within sixty
135	135	104(60) days of the aforestated deadlines shall be assessed a monetary penalty amount equal to two
136	136	105percent (2%) of the gross revenues derived from, or pertaining to, the sale or provision of
137	137	106streaming entertainment services to individuals and businesses residing in the Commonwealth
138	138	107during the applicable time period;
139	139	108 (7) any monetary penalty assessed upon a streaming entertainment operator for failure to
140	140	109submit financial statements before the deadline shall be cumulative to the assessment of five
141	141	110percent (5%) of gross revenues. 7 of 13
142	142	111 (d) Subject to audit and revision pursuant to the Department of Revenue’s authority in
143	143	112Section 5, the Department of Revenue shall utilize the financial statement of a streaming
144	144	113entertainment operator to assess an amount equal to five percent (5%) of such streaming
145	145	114entertainment operator’s gross revenues derived in such period from the sale or provision of
146	146	115streaming entertainment service to individuals and businesses in the Commonwealth.
147	147	116 (e) Upon assessment by written notice of the Department of Revenue, a streaming
148	148	117entertainment operator must submit payment to the Commonwealth within thirty (30) days of
149	149	118such notice.
150	150	119 (1) Streaming entertainment operators that fail to submit payment within thirty (30) days
151	151	120of the aforestated deadline shall be assessed a monetary penalty amount equal to two percent
152	152	121(2%) of the gross revenues derived from, or pertaining to, the sale or provision of streaming
153	153	122entertainment services to individuals and businesses in the Commonwealth during the applicable
154	154	123time period;
155	155	124 (2) streaming entertainment operators that fail to submit remuneration of the assessment
156	156	125within sixty (60) days of the aforestated deadline shall be assessed a penalty equal to three
157	157	126percent (3%) of the gross revenues derived from, or pertaining to, the sale or provision of
158	158	127streaming entertainment service to individuals and businesses in the Commonwealth during the
159	159	128applicable time period;
160	160	129 (3) any monetary penalty assessed upon a streaming entertainment operator for failure to
161	161	130submit payment before the deadline shall be in addition to the assessment of five percent (5%) of
162	162	131gross revenues. 8 of 13
163	163	132 (f) In accordance with Section 7 of this Act, the Commonwealth, local governments, or
164	164	133instrumentalities thereof, may levy additional monetary and legal penalties upon any streaming
165	165	134entertainment operator that fails to timely provide written financial statements or remuneration of
166	166	135assessments.
167	167	136 Section 5. Right to audit financial records pertaining to assessable gross revenues.
168	168	137 (a) The Commonwealth shall have the right to conduct an audit or review of the records
169	169	138reasonably related to the sources, amounts and computation of assessable gross revenues derived
170	170	139from, or pertaining to, the sale or provision of streaming entertainment service to individuals and
171	171	140businesses residing in the Commonwealth within the previous three (3) years.
172	172	141 (b) Within thirty (30) days of a written request, a streaming entertainment operator shall
173	173	142provide the Department of Revenue with copies of financial records related to the review or audit
174	174	143of assessable gross revenues derived from, or pertaining to, the sale or provision of streaming
175	175	144entertainment services to individuals and businesses residing in the Commonwealth.
176	176	145 (c) In the event of an alleged underpayment, the Department of Revenue shall provide the
177	177	146streaming entertainment operator with a written statement indicating the basis for the alleged
178	178	147underpayment. The streaming entertainment operator shall have thirty (30) days from the receipt
179	179	148of a statement regarding an alleged underpayment to provide the Department of Revenue any
180	180	149written objection to the results of any assessable gross revenue review or audit, including any
181	181	150substantiating documentation. Based on this exchange of information, the Department of
182	182	151Revenue shall make a final determination of the underpayment(s), if any, within thirty (30) days
183	183	152of the streaming entertainment operator’s objection and shall provide the operator with written
184	184	153notice of the determination. 9 of 13
185	185	154 (d) Any additional assessments due to the Commonwealth as a result of the assessable
186	186	155gross revenue review or audit shall be paid to the Department of Revenue by the streaming
187	187	156entertainment operator within forty-five (45) days from the date of written notification of the
188	188	157final decision. If the assessable gross revenue review or audit shows that amounts have been
189	189	158underpaid, then the streaming entertainment operator shall pay the underpaid amount plus
190	190	159monetary fines equal to ten percent (10%) of the underpayment.
191	191	160 (e) A streaming entertainment operator adversely affected by any final action, or failure
192	192	161to act, of the Department of Revenue that is inconsistent with this section may, within thirty (30)
193	193	162days after such action or failure to act, commence an action in any court of competent
194	194	163jurisdiction within the Commonwealth. The court shall hear and decide such action on an
195	195	164expedited basis.
196	196	165 Section 6. Streaming Entertainment Fund
197	197	166 (a) There shall be a Streaming Entertainment Fund which shall consist of amounts
198	198	167credited to the fund in accordance with this section. The fund shall be administered by the state
199	199	168treasurer and held in trust exclusively for the purposes of this section. The state treasurer shall be
200	200	169treasurer-custodian of the fund and shall have the custody of its monies and securities.
201	201	170 (b) The Streaming Entertainment Fund shall consist of: (i) revenues collected from the
202	202	171assessment imposed by this Act; (ii) revenue from appropriations or other money specifically
203	203	172designated to be credited to the fund; (iii) interest earned on money in the fund; and (iv) funds
204	204	173from private sources including, but not limited to, gifts, grants and donations received by the
205	205	174Commonwealth that are specifically designated to be credited to the fund. Amounts credited to
206	206	175the fund shall not be subject to further appropriation and any money remaining in the fund at the 10 of 13
207	207	176end of a fiscal year shall not revert to the General Fund. The secretary of the Commonwealth
208	208	177shall annually, not later than December 31, report on the activity of the fund to the clerks of the
209	209	178Senate and House of Representatives and the Senate and House Committees on Ways and
210	210	179Means.
211	211	180 (c) The Streaming Entertainment Fund shall make bi-annual distributions on March 1and
212	212	181September 1 of each year. On those dates, the Streaming Entertainment Fund shall distribute,
213	213	182with no remainder left, all monies then held in the Fund according to the following formula:
214	214	183 (1) One-fifth (1/5) of the monies in the Streaming Entertainment Fund shall be distributed
215	215	184to the Commonwealth General Fund;
216	216	185 (2) Two-fifths (2/5) of the monies in the Streaming Entertainment Fund shall be
217	217	186distributed to municipalities and local governments in the Commonwealth and further allocated
218	218	187proportionally based upon population;
219	219	188 (3) Two-fifths (2/5) of the monies in the Streaming Entertainment Fund shall be
220	220	189distributed to community media centers in the Commonwealth and further allocated
221	221	190proportionally based upon population.
222	222	191 (d) The Department of Revenue shall use the most recent city and town population
223	223	192estimates of the United States Bureau of the Census in calculating distributions pursuant to(c)(2)
224	224	193and (c)(3) of this section.
225	225	194 (e) Distributions pursuant to (c)(2) of this section shall be listed upon each municipality’s
226	226	195cherry sheet for the upcoming fiscal year. 11 of 13
227	227	196 (f) The Commissioner of Revenue or any official responsible, shall, without further
228	228	197appropriation and upon certification of the Commissioner, distribute all sums allocated under (c)
229	229	198under this section.
230	230	199 (g) All sums distributed under (c)(1) of this section shall be deposited in the
231	231	200Commonwealth General Fund. All sums distributed under (c)(2) of this section shall be
232	232	201deposited in the general fund of the respective municipality. All sums distributed under (c)(3) of
233	233	202this section shall be deposited in accordance with Section 53F¾ of Chapter 44, as amended by
234	234	203Section 8 of this act.
235	235	204 (h) No expenditures from the Streaming Entertainment Fund shall be made except to
236	236	205provide funding for: (i) the operating expenses of the fund; (ii) legal and administrative expenses
237	237	206incurred in enforcing the provisions of this Act; and (iii) legal and administrative expenses
238	238	207incurred in collecting any assessment due under this act.
239	239	208 (i) All sums appropriated under this Act shall be expended in a manner reflecting and
240	240	209encouraging a policy of nondiscrimination and equal opportunity.
241	241	210 (j) All officials and employees of an agency, board, department, commission or division
242	242	211receiving monies under this Act shall take affirmative steps to ensure equality of opportunity and
243	243	212nondiscrimination in the internal affairs of state government, as well as in their relations with the
244	244	213public, including those persons and organizations doing business with the Commonwealth. Each
245	245	214agency, board, department, commission or division, in spending appropriated sums and
246	246	215discharging its statutory responsibilities, shall adopt measures to ensure equal opportunity and
247	247	216nondiscrimination in the areas of hiring, promotion, demotion or transfer, recruitment, layoff or 12 of 13
248	248	217termination, rates of compensation, in-service or apprenticeship training programs and all terms
249	249	218and conditions of employment.
250	250	219 Section 7. Judicial remedy.
251	251	220 (a) In accordance with Section 1 of Chapter 12, the Attorney General is authorized to
252	252	221enforce this Act. The Attorney General may, within seven (7) years, bring an action to recover
253	253	222any unpaid assessments and monetary penalties, or enjoin the operations of any non-compliant
254	254	223entity, in any court of competent jurisdiction.
255	255	224 (b) Any local government, or class thereof, or community media center adversely
256	256	225impacted by the action, or failure to act, of any streaming entertainment operator under this Act,
257	257	226may, within seven (7) years, bring an action to recover any unpaid assessments and monetary
258	258	227penalties, or enjoin the operations of any non-compliant entity, in any court of competent
259	259	228jurisdiction.
260	260	229 SECTION 2. Municipal streaming fund.
261	261	230 Section 53 F¾ of Chapter 44 of the General Laws shall be amended by adding at the end
262	262	231thereof the following new section: -
263	263	232 “Notwithstanding section 53 or any other general or special law to the contrary, a
264	264	233municipality that accepts this section may establish in the treasury a separate revenue account to
265	265	234be known as the PEG Access and Streaming Entertainment Funds, into which may be deposited
266	266	235funds received in connection with assessments derived from streaming entertainment providers.
267	267	236Monies in the fund shall only be appropriated to support public, educational or governmental
268	268	237access media centers.” 13 of 13
269	269	238 SECTION 3. Effective date.
270	270	239 This act shall take effect on January 1, 2024.