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(a), Government Code, is amended
  to read as follows:
         (a)  The council is composed of one nonvoting member
  appointed by the state broadband development office and the
  following 17 voting members:
               (1)  two representatives of separate Internet service
  provider industry associations, including at least one
  representative of an association that primarily represents
  regulated 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;
               (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 member of the house of representatives,
  appointed by the speaker of the house of representatives; and
               (14)  one state senator, appointed by the lieutenant
  governor.
         SECTION 2.  Section 490H.006(a), Government Code, is amended
  to read as follows:
         (a)  The council shall:
               (1)  research and monitor the progress of:
                     (A)  broadband development in unserved areas;
                     (B)  deployment of broadband services statewide;
  and
                     (C)  purchase of broadband by residential and
  commercial customers;
               (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
  services; 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.
         SECTION 3.  Subtitle F, Title 4, Government Code, is amended
  by adding Chapter 490I to read as follows:
  CHAPTER 490I. STATE BROADBAND DEVELOPMENT OFFICE
         Sec. 490I.0101.  OFFICE. (a) The state broadband
  development office is established to promote the expansion of
  access to broadband service in this state.
         (b)  The state broadband development office is
  administratively attached to The University of Texas System.  The
  system may employ additional employees necessary for the discharge
  of the duties of the office.
         (c)  The state broadband development office:
               (1)  is under the direction and control of the board of
  advisors established by Section 490I.0104;
               (2)  shall promote the policies enumerated in this
  chapter; and
               (3)  may perform any action authorized by state or
  federal law.
         Sec. 490I.0102.  POWERS AND DUTIES. (a) The state broadband
  development office shall:
               (1)  serve as a resource for information regarding
  broadband service in this state;
               (2)  engage in outreach to communities regarding the
  expansion, adoption, and affordability of broadband service and the
  programs administered by the office; and
               (3)  serve as an information clearinghouse regarding
  federal programs that provide assistance to local entities with
  respect to broadband service.
         (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 office authority to
  regulate broadband services or broadband service providers or,
  except as provided by Section 490I.0107, to require broadband
  service providers to submit information to the office.
         Sec. 490I.0103.  THRESHOLD SPEED FOR BROADBAND SERVICE. (a)
  For the purposes of this chapter and 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 3 megabits per second or faster.
         (b)  If the Federal Communications Commission adopts
  download or upload threshold speeds for advanced
  telecommunications capability under 47 U.S.C. Section 1302 that are
  higher than those specified by Subsection (a), the state broadband
  development office by rule may require Internet service to be
  capable of providing download and upload speeds that match those
  federal threshold speeds in order to qualify as broadband service
  under this chapter.
         (c)  Not later than the 60th day after the date the state
  broadband development office adjusts the minimum download or upload
  speeds required for Internet service to qualify as broadband
  service under this chapter, the office shall publish the adjusted
  minimum download and upload speeds on the comptroller's Internet
  website.
         Sec. 490I.0104.  BOARD OF ADVISORS. (a)  In this section:
               (1)  "Rural area" means a county with a population of
  less than 100,000 that is not adjacent to a county with a population
  of more than 350,000.
               (2)  "Urban area" means:
                     (A)  a municipality with a population of more than
  500,000; or
                     (B)  a county with a population of more than 1
  million.
         (b)  The state broadband development office board of
  advisors is composed of 12 members, appointed as follows:
               (1)  three members appointed by the governor,
  including:
                     (A)  one member to represent the Texas Economic
  Development and Tourism Office; and
                     (B)  two members to represent nonprofit
  corporations that work on broadband connectivity, broadband
  adoption, and digital literacy;
               (2)  three members appointed by the lieutenant
  governor, including:
                     (A)  one member who resides in a rural area;
                     (B)  one member who resides in an urban area; and
                     (C)  one member to represent the public education
  community;
               (3)  three members appointed by the speaker of the
  house of representatives, including:
                     (A)  one member who resides in a rural area;
                     (B)  one member who resides in a county that:
                           (i)  is adjacent to an international border;
                           (ii)  is located not more than 150 miles from
  the Gulf of Mexico; and
                           (iii)  has a population of more than 60,000;
  and
                     (C)  one member to represent the health and
  telemedicine industry;
               (4)  one member appointed by the board of regents of The
  University of Texas System;
               (5)  one member appointed by the board of regents of the
  Texas Tech University System; and
               (6)  one nonvoting member appointed by the state
  broadband development office to represent the office.
         (c)  Members of the board of advisors serve at the pleasure
  of the appointing authority for staggered two-year terms, with the
  terms of the members described by Subsections (b)(1) and (2)
  expiring February 1 of each odd-numbered year and the terms of the
  members described by Subsections (b)(3), (4), (5), and (6) expiring
  February 1 of each even-numbered year. A member may serve more than
  one term.
         (d)  Not later than the 30th day after the date a member's
  term expires, the appropriate appointing authority shall appoint a
  replacement in the same manner as the original appointment.
         (e)  If a vacancy occurs on the board of advisors, the
  appropriate appointing authority shall appoint a successor in the
  same manner as the original appointment to serve for the remainder
  of the unexpired term. The appropriate appointing authority shall
  appoint the successor not later than the 30th day after the date the
  vacancy occurs.
         (f)  The board of advisors shall meet at least once per month
  with representatives from the state broadband development office
  for the purpose of directing and overseeing the work of the office
  in implementing the provisions of this chapter.
         (g)  The board of advisors may retain employees to discharge
  the duties of the office.
         (h)  A person who is professionally affiliated with a person
  serving as a member of the board of advisors is not eligible for
  funding from the broadband development program established under
  Section 490I.0107.
         (i)  The board of advisors may consult with stakeholders with
  technical expertise in the area of broadband and telecommunication
  technology.
         (j)  Meetings of the board of advisors are subject to Chapter
  551.
         Sec. 490I.0105.  PARTICIPATION IN PROCEEDINGS OF FEDERAL
  COMMUNICATIONS COMMISSION. (a) The state 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 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 that will enable the office to
  participate in the process described by Subsection (b).
         Sec. 490I.0106.  BROADBAND DEVELOPMENT MAP. (a) The state
  broadband development office shall develop and maintain a public
  Internet website.
         (b)  The office shall create, update annually, and publish on
  the office'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.
         (c)  The office by rule may determine the scope of a
  designated area under Subsection (b).
         (d)  After creation of the initial map described in
  Subsection (b), the office may evaluate the usefulness of the
  standards for eligible and ineligible areas outlined in Subsection
  (b) and, if appropriate, make a recommendation to the legislature
  to revise the standards.
         (e)  The map must display:
               (1)  the number of broadband service providers that
  serve each eligible 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 school campus in this state with an
  indication of whether the public school campus has access to
  broadband service.
         (f)  The office must create, update, and publish the map in a
  manner consistent with the Federal Communications Commission
  mapping methodology prescribed under the Broadband DATA Act (Pub.
  L. No. 116-130).
         (g)  Except as provided by Subsection (h), the office shall
  use information available from the Federal Communications
  Commission to create or update the map.
         (h)  If information from the Federal Communications
  Commission is 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
  Federal Communications Commission mapping methodology prescribed
  under the Broadband DATA Act (Pub. L. No. 116-130).
         (i)  Information a broadband service provider reports to the
  office under Subsection (h) and information provided by the Federal
  Communications Commission, if not publicly available, is
  confidential and not subject to disclosure under Chapter 552.
         (j)  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.
         (k)  The office may release information reported under
  Subsection (h) to a contractor providing services under Subsection
  (j). 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.
         (l)  A person who contracts under Subsection (j) may not
  provide services for a broadband provider in this state before the
  second anniversary of the last day the contract is in effect.
         (m)  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.
  The criteria may also include community surveys regarding the
  reliability of Internet service, where available.
         (n)  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 office's Internet website.
         (o)  Not later than the 45th day after the date that a
  broadband provider receives notice under Subsection (n), the
  provider shall provide information to the office showing whether
  the designated area should or should not be reclassified.
         (p)  Not later than the 75th day after the date that a
  broadband provider receives notice under Subsection (n), 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.
         (q)  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 (b); and
               (2)  meets the requirements of Subsection (f).
         Sec. 490I.0107.  BROADBAND DEVELOPMENT PROGRAM. (a) The
  state 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.0106.
         (b)  The office shall establish and publish eligibility
  criteria for award recipients. The criteria must:
               (1)  include consideration of grants and other
  financial incentives awarded from the federal government for the
  deployment of broadband service in a designated area;
               (2)  require 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; and
               (3)  prioritize eligible areas in which the lowest
  percentage of addresses have access to broadband service.
         (c)  Notwithstanding Subsection (b)(3), the office may
  establish eligibility criteria that take into account a cost
  benefit analysis for awarding money to the eligible areas described
  by that subdivision.
         (d)  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.0106;
               (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.
         (e)  An award granted under this section does not affect
  distributions received by a broadband provider from the state
  universal service fund established under Section 56.021, Utilities
  Code.
         Sec. 490I.0108.  BROADBAND DEVELOPMENT FUND. (a) The
  broadband development fund is a special fund in the state treasury
  outside of the general revenue fund.
         (b)  The fund consists of:
               (1)  appropriations of money to the fund by the
  legislature;
               (2)  gifts, donations, and grants, including federal
  grants; and
               (3)  interest earned on the investment of the money in
  the fund.
         (c)  The comptroller shall deposit to the credit of the fund
  federal money received by the state for the purpose of broadband
  development, to the extent permitted by state and federal law.
         (d)  Money in the fund may be appropriated only to the state
  broadband development office for purposes of:
               (1)  administering the broadband development program;
               (2)  creating or updating the map described by Section
  490I.0106;
               (3)  creating or updating the state broadband plan
  under Section 490I.0109; or
               (4)  engaging in outreach to communities regarding the
  programs administered by the office and the expansion, adoption,
  and affordability of broadband services and equipment.
         (e)  The fund is exempt from the application of Section
  404.071.
         Sec. 490I.0109.  STATE BROADBAND PLAN. (a) The state
  broadband development office shall prepare a state broadband plan
  that establishes long-term goals for greater access to and
  affordability and adoption of broadband service in this state.
         (b)  In developing the state broadband plan, the office
  shall:
               (1)  collaborate, to the extent possible, with state
  agencies, political subdivisions, broadband industry stakeholders
  and representatives, and community organizations that focus on
  broadband services and technology access;
               (2)  give consideration to 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)  prioritize broadband needs related to public
  education and state and local education agencies, including
  agencies involved in the electronic administration of all
  assessment instruments required under Section 39.023, Education
  Code.
         Sec. 490I.0110.  RULEMAKING. The state broadband
  development office may adopt rules necessary to implement this
  chapter. Rules must be:
               (1)  proposed and adopted according to Chapter 2001;
  and
               (2)  approved by a majority vote of the board of
  advisors.
         SECTION 4.  Not later than November 1, 2021, each appointing
  authority shall appoint the members of the state broadband
  development office board of advisors as required by Section
  490I.0104, Government Code, as added by this Act. The board of
  advisors may not take action until a majority of the members have
  taken office.
         SECTION 5.  Not later than the first anniversary of the
  effective date of this Act, the state broadband development office
  established by Section 490I.0101, Government Code, as added by this
  Act, shall prepare the initial state broadband plan required by
  Section 490I.0109, Government Code, as added by this Act.
         SECTION 6.  (a) The state broadband development office
  established by Section 490I.0101, Government Code, as added by this
  Act, shall publish the map required by Section 490I.0106,
  Government Code, as added by this Act, on the office's Internet
  website not later than January 1, 2023.
         (b)  Not later than September 1, 2022, the office shall
  publish on the office'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.0107, 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.0106, Government Code, as added by this Act.
         SECTION 7.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2021.
 
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