Session of 2000
By Committee on Utilities

  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.
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,


  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


  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.