By: Ashby, et al. (Senate Sponsor - Nichols) H.B. No. 5
(In the Senate - Received from the House April 12, 2021;
April 15, 2021, read first time and referred to Committee on
Transportation; April 26, 2021, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
April 26, 2021, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 5 By: Nichols
A BILL TO BE ENTITLED
AN ACT
relating to the expansion of broadband services to certain areas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 490H.002, Government Code, is amended to
read as follows:
Sec. 490H.002. COMPOSITION. (a) The council is composed of
one nonvoting member appointed by the broadband development office
and the following [17] voting members appointed by the governor:
(1) two representatives of separate Internet service
provider industry associations, including at least one
representative of an association that primarily represents small
providers, as defined by Section 56.032, Utilities Code[, appointed
by the governor];
(2) one representative of the health information
technology industry[, appointed by the governor];
(3) two representatives of unaffiliated nonprofit
organizations that advocate for elderly persons statewide[,
appointed by the governor];
(4) two representatives of unaffiliated nonprofit
organizations that have a demonstrated history of working with the
legislature and the public to identify solutions for expanding
broadband to rural, unserved areas of this state[, appointed by the
governor];
(5) one representative of an agricultural advocacy
organization in this state[, appointed by the governor];
(6) one representative of a hospital advocacy
organization in this state[, appointed by the governor];
(7) one representative of a medical advocacy
organization in this state[, appointed by the governor];
(8) one county official who serves in an elected
office of a county with a population of less than 35,000[, appointed
by the governor];
(8-a) one county clerk of a county with a population of
less than 60,000;
(8-b) one sheriff of a county with a population of less
than 60,000;
(9) one municipal official who serves in an elected
office of a municipality with a population of less than 20,000
located in a county with a population of less than 60,000[,
appointed by the governor];
(10) one representative of an institution of higher
education that has its main campus in a county with a population of
less than 60,000[, appointed by the governor];
(11) one representative of a school district with a
territory that includes only counties with a population of less
than 60,000[, appointed by the governor];
(12) one representative from a library association[,
appointed by the governor];
(13) one hospital administrator employed by a licensed
hospital located in a county with a population of less than 60,000
[member of the house of representatives, appointed by the speaker
of the house of representatives]; [and]
(14) one representative from an electric cooperative
providing broadband [state senator, appointed by the lieutenant
governor];
(15) one representative of a school district with a
territory that includes all or part of a county with a population of
more than 500,000; and
(16) one representative of a nonprofit organization
that has a demonstrated history of facilitating broadband adoption
by offering digital literacy training or providing access to
broadband technology.
(b) The entities making appointments under Subsection (a)
shall, to the greatest extent practicable, ensure that the
composition of the council reflects the racial and ethnic
composition of the state.
(c) [(b)] A member of the council appointed under
Subsection (a) serves for a five-year term.
(d) [(c)] A vacancy on the council is filled in the same
manner as the original appointment.
SECTION 2. Section 490H.003, Government Code, is amended to
read as follows:
Sec. 490H.003. COUNCIL OFFICERS; COMMITTEES [PRESIDING
OFFICER]. (a) The governor shall designate from the members of the
council a chair and vice chair [the presiding officer] of the
council for two-year terms.
(b) The chair and the vice chair each must reside in a county
with a population of:
(1) less than 100,000; or
(2) more than 250,000.
(c) When designating a chair or vice chair, the governor
shall ensure that:
(1) during a term when the chair resides in a county
with a population of more than 250,000, the vice chair resides in a
county with a population of less than 100,000;
(2) during a term when the chair resides in a county
with a population of less than 100,000, the vice chair resides in a
county with a population of more than 250,000;
(3) persons described by Subdivision (1) are
immediately succeeded by persons described by Subdivision (2); and
(4) persons described by Subdivision (2) are
immediately succeeded by persons described by Subdivision (1).
(d) The chair may appoint subcommittees and technical
advisory committees to assist with the duties of the council.
SECTION 3. Section 490H.004, Government Code, is amended by
amending Subsection (b) and adding Subsections (c) and (d) to read
as follows:
(b) The council shall convene at the call of the chair or, if
the chair is unable to call a meeting or does not call at least one
meeting to meet the requirements of Subsection (a), at the call of
the vice chair [presiding officer].
(c) The council shall:
(1) post the agenda for each council meeting on the
council's Internet website at least 48 hours before the meeting;
and
(2) not later than the 14th day after the date of each
meeting, post on the council's Internet website the minutes or
recording of the meeting required under Section 551.021.
(d) As an exception to Chapter 551 and other law, the
council may meet by use of video conference call. This subsection
applies for purposes of constituting a quorum, for purposes of
voting, and for any other purpose allowing a member of the council
to fully participate in any meeting of the council. A meeting held
by use of video conference call:
(1) must be open to the public, which includes a video
broadcast of the meeting in real time through the council's
Internet website;
(2) must specify in the meeting notice the link to the
video broadcast described by Subdivision (1); and
(3) must provide two-way video communication between
all council members attending the meeting.
SECTION 4. Sections 490H.006(a) and (b), Government Code,
are amended to read as follows:
(a) The council shall:
(1) research the progress of:
(A) broadband development in unserved areas;
(B) deployment of broadband statewide;
(C) purchase of broadband by residential and
commercial customers; and
(D) patterns and discrepancies in access to
broadband;
(2) identify barriers to residential and commercial
broadband deployment in unserved areas;
(3) study:
(A) technology-neutral solutions to overcome
barriers identified under Subdivision (2); and
(B) industry and technology trends in broadband;
and
(4) analyze how statewide access to broadband would
benefit:
(A) economic development;
(B) the delivery of educational opportunities in
higher education and public education;
(C) state and local law enforcement;
(D) state emergency preparedness; and
(E) the delivery of health care services,
including telemedicine and telehealth.
(b) The council may research another matter related to
broadband [only if a majority of the council approves researching
the matter].
SECTION 5. Subtitle F, Title 4, Government Code, is amended
by adding Chapter 490I to read as follows:
CHAPTER 490I. BROADBAND DEVELOPMENT OFFICE
Sec. 490I.0101. THRESHOLD SPEED FOR BROADBAND SERVICE. (a)
For purposes of this chapter, subject to Subsection (b), "broadband
service" means Internet service with the capability of providing:
(1) a download speed of 25 megabits per second or
faster; and
(2) an upload speed of three megabits per second or
faster.
(b) If the Federal Communications Commission adopts upload
or download threshold speeds for advanced telecommunications
capability under 47 U.S.C. Section 1302 that are different than
those specified by Subsection (a), the comptroller may require
Internet service to be capable of providing download or upload
speeds that match that federal threshold in order to qualify under
this chapter as "broadband service."
(c) Not later than the 60th day after the date the
comptroller adjusts the minimum download or upload speeds required
for Internet service to qualify as "broadband service," the
broadband development office shall publish on the comptroller's
Internet website the adjusted minimum download and upload speeds.
Sec. 490I.0102. OFFICE. (a) The broadband development
office is an office within the comptroller's office.
(b) The comptroller may employ additional employees
necessary for the discharge of the duties of the broadband
development office.
(c) The broadband development office:
(1) is under the direction and control of the
comptroller;
(2) shall promote the policies enumerated in this
chapter; and
(3) may perform any action authorized by state or
federal law.
Sec. 490I.0103. POWERS AND DUTIES. (a) The broadband
development office shall:
(1) serve as a resource for information regarding
broadband service and digital connectivity in this state;
(2) engage in outreach to communities regarding the
expansion, adoption, affordability, and use of broadband service
and the programs administered by the office; and
(3) serve as an information clearinghouse in relation
to:
(A) federal programs providing assistance to
local entities with respect to broadband service; and
(B) addressing barriers to digital connectivity.
(b) The office has the powers necessary to carry out the
duties of the office under this chapter, including the power to
enter into contracts and other necessary instruments.
(c) This chapter does not grant the comptroller authority to
regulate broadband services or broadband service providers or,
except as required of an applicant or recipient under Section
490I.0106, to require broadband service providers to submit
information to the comptroller.
(d) For the purpose of carrying out a duty or power of the
office under this chapter, the office may:
(1) advertise in any available media; and
(2) promote the office's programs and functions.
Sec. 490I.0104. PARTICIPATION IN PROCEEDINGS OF THE FEDERAL
COMMUNICATIONS COMMISSION. (a) The broadband development office
may monitor, participate in, and provide input in proceedings of
the Federal Communications Commission related to the geographic
availability and deployment of broadband service in this state to
ensure that:
(1) the information available to the Federal
Communications Commission reflects the current status of
geographic availability and deployment of broadband service in this
state; and
(2) this state is best positioned to benefit from
broadband service deployment programs administered by federal
agencies.
(b) The office may participate in a process established by
the Federal Communications Commission allowing governmental
entities to challenge the accuracy of the commission's information
regarding the geographic availability and deployment of broadband
service.
(c) The office shall establish procedures and a data
collection process in accordance with rules established by the
Federal Communications Commission for the Digital Opportunity Data
Collection that will enable the office to participate in the
process described by Subsection (b).
Sec. 490I.0105. BROADBAND DEVELOPMENT MAP. (a) The
broadband development office shall create, update annually, and
publish on the comptroller's Internet website a map classifying
each designated area in this state as:
(1) an eligible area, if fewer than 80 percent of the
addresses in the designated area have access to broadband service;
or
(2) an ineligible area, if 80 percent or more of the
addresses in the designated area have access to broadband service.
(b) The comptroller by rule may determine the scope of a
designated area under Subsection (a).
(c) The map required by Subsection (a) must display:
(1) the number of broadband service providers that
serve each designated area;
(2) for each eligible area, an indication of whether
the area has access to Internet service that is not broadband
service, regardless of the technology used to provide the service;
and
(3) each public preschool or primary or secondary
school in this state and an indication of whether the school has
access to broadband service.
(d) The office must create, update, and publish the map in a
manner consistent with the most current mapping methodology adopted
by the Federal Communications Commission.
(e) Except as provided by Subsection (c), the office shall
use information available from the Federal Communications
Commission to create or update the map.
(f) If information from the Federal Communications
Commission is not available or not sufficient for the office to
create or update the map, the office may request the necessary
information from a political subdivision or broadband service
provider, and the subdivision or provider may report the
information to the office. The office may not require a subdivision
or provider to report information in a format different from the
format required by the most current mapping methodology adopted by
the Federal Communications Commission.
(g) Information a broadband service provider reports to the
office under Subsection (f) and information provided by the Federal
Communications Commission, if not publicly available, is
confidential and not subject to disclosure under Chapter 552.
(h) The office may contract with a private consultant or
other appropriate person who is not associated or affiliated with a
commercial broadband provider, including a local governmental
entity, to provide technical or administrative assistance to the
office for the purpose of creating or updating the map.
(i) The office may release information reported under
Subsection (f) to a contractor providing services under Subsection
(h). The contractor shall:
(1) keep the information confidential; and
(2) return the information to the office on the
earliest of the following dates:
(A) the date the contract expires;
(B) the date the contract is terminated; or
(C) the date the mapping project for which the
contractor is providing services is complete.
(j) A person who contracts under Subsection (h) may not
provide services for a broadband provider in this state before the
second anniversary of the last day the person was under the
contract.
(k) The office shall establish criteria for determining
whether a designated area should be reclassified as an eligible
area or an ineligible area. The criteria must include an evaluation
of Internet speed test data and information on end user addresses.
(l) A broadband service provider or political subdivision
may petition the office to reclassify a designated area on the map
as an eligible area or ineligible area. The office shall provide
notice of the petition to each broadband service provider that
provides broadband service to the designated area and post notice
of the petition on the comptroller's Internet website.
(m) Not later than the 45th day after the date that a
broadband provider receives notice under Subsection (l), the
provider shall provide information to the office showing whether
the designated area should or should not be reclassified.
(n) Not later than the 75th day after the date that a
broadband provider receives notice under Subsection (l), the office
shall determine whether to reclassify the designated area on the
map and update the map as necessary. A determination made by the
office under this subsection is not a contested case for purposes of
Chapter 2001.
(o) The office is not required to create, update, or publish
a map under this section if the Federal Communications Commission
produces a map that:
(1) enables the office to identify eligible and
ineligible areas, as described by Subsection (a); and
(2) meets the requirements of Subsection (c).
Sec. 490I.0106. BROADBAND DEVELOPMENT PROGRAM. (a) The
broadband development office shall establish a program to award
grants, low-interest loans, and other financial incentives to
applicants for the purpose of expanding access to and adoption of
broadband service in designated areas determined to be eligible
areas by the office under Section 490I.0105.
(b) The office shall establish and publish criteria for
making awards under Subsection (a). The office shall:
(1) take into consideration grants and other financial
incentives awarded by the federal government for the deployment of
broadband service in a designated area;
(2) prioritize the applications of applicants that
will expand access to and adoption of broadband service in eligible
areas in which the lowest percentage of addresses have access to
broadband service;
(3) prioritize an applicant that the broadband
provided by the applicant will maintain a program to, by default,
block access to pornographic or other obscene materials; and
(4) prioritize the applications of applicants that
will expand access to broadband service in public and private
primary and secondary schools and institutions of higher education.
(c) The office may not:
(1) favor a particular broadband technology in
awarding grants, loans, or other financial incentives;
(2) award grants, loans, or other financial incentives
to a broadband provider that does not report information requested
by the office under Section 490I.0105;
(3) award a grant, loan, or other financial incentive
to a noncommercial provider of broadband service for an eligible
area if a commercial provider of broadband service has submitted an
application for the eligible area; or
(4) take into consideration distributions from the
state universal service fund established under Section 56.021,
Utilities Code, when deciding to award grants, loans, or other
financial incentives.
(d) The office shall:
(1) post on the comptroller's Internet website
information about the application process and the receipt of awards
and shall update that information as necessary; and
(2) post on the comptroller's Internet website
information from each application, including the applicant's name,
the area targeted for expanded broadband service access or adoption
by the application, and any other information the office considers
relevant or necessary, for a period of at least 30 days before the
office makes a decision on the application.
(e) During the 30-day posting period described by
Subsection (d) for an application, the office shall accept from any
interested party a written protest of the application relating to
whether the applicant or project is eligible for an award or should
not receive an award based on the criteria prescribed by the office.
(f) Notwithstanding any deadline for submitting an
application, if the office upholds a protest submitted under
Subsection (e) on the grounds that one or more of the addresses in
an eligible area subject to the application have access to
broadband service, the applicant may resubmit the application
without the challenged addresses not later than 30 days after the
date that the office upheld the protest.
(g) The office shall establish and publish criteria for
award recipients. The criteria must include requirements that
grants, loans, and other financial incentives awarded through the
program be used only for capital expenses, purchase or lease of
property, and other expenses, including backhaul and transport,
that will facilitate the provision or adoption of broadband
service.
(h) An award granted under this section does not affect the
eligibility of a telecommunications provider to receive support
from the state universal service fund under Section 56.021,
Utilities Code.
Sec. 490I.0107. STATE BROADBAND PLAN. (a) The broadband
development office shall prepare, update, and publish on the
comptroller's Internet website a state broadband plan that
establishes long-term goals for greater access to and adoption,
affordability, and use of broadband service in this state.
(b) In developing the state broadband plan, the office
shall:
(1) to the extent possible, collaborate with state
agencies, political subdivisions, broadband industry stakeholders
and representatives, and community organizations that focus on
broadband services and technology access;
(2) consider the policy recommendations of the
governor's broadband development council;
(3) favor policies that are technology-neutral and
protect all members of the public;
(4) explore state and regional approaches to broadband
development; and
(5) examine broadband service needs related to:
(A) public safety, including the needs of state
agencies involved in the administration of criminal justice, as
that term is defined by Article 66.001, Code of Criminal Procedure;
(B) public education and state and local
education agencies, including any agency involved in the electronic
administration of an assessment instrument required under Section
39.023, Education Code; and
(C) public health, including the needs of state
agencies involved in the administration of public health
initiatives such as the Health and Human Services Commission and
the Department of State Health Services.
Sec. 490I.0108. BROADBAND DEVELOPMENT ACCOUNT. (a) The
broadband development account is an account in the general revenue
fund.
(b) The account consists of:
(1) appropriations of money to the account by the
legislature;
(2) gifts, donations, and grants, including federal
grants; and
(3) interest earned on the investment of the money in
the account.
(c) The comptroller shall deposit to the credit of the
account federal money received by the state for the purpose of
broadband development, to the extent permitted by federal law.
(d) Money in the account may be appropriated only to the
broadband development office for purposes of:
(1) creating or updating the map described by Section
490I.0105;
(2) administering the broadband development program
under Section 490I.0106;
(3) creating or updating the state broadband plan
under Section 490I.0107; or
(4) engaging in outreach to communities regarding the
expansion, adoption, affordability, and use of broadband service
and the programs administered by the office.
(e) The account is exempt from the application of Sections
403.095, 403.0956, and 404.071.
Sec. 490I.0109. RULEMAKING. The comptroller may adopt
rules as necessary to implement this chapter.
SECTION 6. (a) The broadband development office
established by Section 490I.0102, Government Code, as added by this
Act, shall publish the map required by Section 490I.0105,
Government Code, as added by this Act, on the comptroller's
Internet website not later than September 1, 2022.
(b) Not later than January 1, 2022, the office shall publish
on the comptroller's Internet website:
(1) a map created by the Federal Communications
Commission that displays the number of broadband service providers
that serve each designated area; or
(2) a link to a map described by Subdivision (1) of
this subsection.
(c) For the purpose of administering the broadband
development program established by Section 490I.0106, Government
Code, as added by this Act, the office shall use a map described by
Subsection (b) of this section to determine whether an area is
eligible until the office publishes the map required by Section
490I.0105, Government Code, as added by this Act.
SECTION 7. The broadband development office established by
Section 490I.0102, Government Code, as added by this Act, shall
prepare the initial state broadband plan required by Section
490I.0107, Government Code, as added by this Act, not later than
September 1, 2022.
SECTION 8. This Act takes effect September 1, 2021.
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