Articles Posted in Telecommunications Law

Signed into law on May 2, 2019, SEA 460 enhances the state’s ability to develop high speed internet access in rural communities. The act does this in two ways: (1) by creating a rural broadband fund used to award grants to certain broadband service providers operating in rural areas, and (2) by issuing new guidelines to the Indiana Department of Transportation (INDOT) regarding communications infrastructure used for broadband services.

First, the act expands I.C. § 4-4-38 “Broadband Grants for Unserved Areas” by adding a new Chapter: I.C. § 4-4-38.5. Entitled “Broadband Grants for Rural Areas”, the Chapter creates a rural broadband fund (“fund”) administered by the Office of Community and Rural Affairs (“Office”) for the purpose of awarding grants to broadband service providers. The Chapter states that before July 21, 2019, the Office must establish procedures for awarding the grants, and that those procedures must prioritize certain broadband service projects over others. I.C. 4-4-38.5-9. Projects that extend broadband service to rural areas where internet connections are unavailable or where connection speeds are less than ten megabits per second will be prioritized over areas with higher connection speeds. However, the Office cannot award grants to projects already receiving federal funding or in areas where broadband service is already available. Finally, the Office must publish all grant application to its website and cannot discriminate awards based on the technology used to provide broadband service.

The act also amends I.C. § 8-23-5 “State Highways” by adding an additional section. I.C. 8-23-5-10 allows INDOT to create a broadband corridor program (“program”) to manage the installation and maintenance of communications infrastructure used for broadband services. The program only applies to infrastructure along or within a limited-access highway (interstate, toll road, U.S. 30, or U.S. 31). INDOT may impose a one-time permit fee for installing the infrastructure and routine permit fees for maintenance, but cannot impose additional fees for access to state roads or U.S. routes. Similar to I.C. § 4-4-38.5, INDOT cannot discriminate among entities requesting access to broadband corridors based on the type of broadband technology used. In tandem, these amendments encourage broadband providers to expand into underserved parts of Indiana while limiting potential obstacles.

In 1990, the State of Pennsylvania enacted a statutory scheme for regulating 911 emergency calls throughout the State. Most notably, counties were responsible for maintaining 911 systems and were obliged to make arrangements with local exchange carriers (“LECs”) operating within the county to provide 911 service. Service providers would impose a charge on its customers to pay for the 911 service. Funds collected via this new charge would be reimbursed to the counties. In April of 2016, the County of Butler filed a complaint against CenturyLink, and other LECs (collectively “Providers”) operating within the county, alleging that they have failed to assess the proper charges to reimburse Butler County for its expenses related to setting up a 911 emergency call system. The County couched its claims based on various common law theories. Providers respond that Butler County is barred from bringing any claims against them, as the 911 Emergency Call Act explicitly gave enforcement authority to the Pennsylvania Emergency Management Agency (“PEMA”), and that the statute’s explicit grant of enforcement authority precludes any other party from enforcing the statute.

Ultimately, the Supreme Court of Pennsylvania ruled in favor of Providers. As an initial note, The Court found that its decision did not implicate any party’s due process rights. A county’s right to reimbursement for setting up a 911 system was granted purely by statute, and thus the enforcement of such rights could be limited by statute. While the Court found the statute to be ambiguous, it ultimately agreed with the Providers’ interpretation. The Court held that any action to enforce the 911 Act’s requirement that LECs charge customers for 911 services may only be brought by PEMA. Thus, Butler County’s various common law claims were properly dismissed. However, this does not mean that Pennsylvania counties are without a remedy. In his concurring opinion, Justice Todd noted that, should the current state of affair continue, Butler County would be entitled to bring a mandamus action against PEMA for its failure to enforce the 911 Act.

Jeremy Fetty is a partner in the law firm of Parr Richey with offices in Indianapolis and Lebanon. Mr. Fetty is current Chair of the Firm Utility and Business Section and often advises businesses and utilities (for profit, non-profit and cooperative) on regulatory, compliance, and transactional matters.

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