§ 7-59-311 — Prohibited discrimination - Low-income households - Affirmative defenses - Measuring compliance - Waiver or extension

(a) (1) A holder of a state-issued certificate of franchise authority shall not discriminate among residential subscribers or potential subscribers. For purposes of this section, "discrimination" means the denial of access to cable or video service to any individual or group of residential subscribers or potential subscribers because of the race, income, gender, or ethnicity of the residents in the local area in which the individual or group resides. (2) Within forty-two (42) months after the date it receives a state-issued certificate of franchise authority, twenty-five percent (25%) of the households with access to a holder of a state-issued certificate of franchise authority's cable or video service shall be low-income households. Compliance with this requirement shall be an affirmative defense to any allegations of discrimination pursuant to subdivision (a)(1). With respect to an incumbent cable service provider that obtains a state-issued certificate of franchise authority, the affirmative obligation to provide access to low-income households as specified in this subsection (a) shall be measured based upon the percentage of low-income households that exist only in new areas that are not covered, or were not previously covered, by a local franchise, referred to in this section as the new areas. An incumbent cable service provider that obtains a state-issued certificate of franchise authority will be deemed to satisfy its affirmative obligation if the provider certifies to the department in its application for a state-issued certificate of franchise authority that it will deploy its cable or video system to all the households located within the proposed service area. An incumbent cable service provider that obtains a state-issued certificate of franchise authority and satisfies its affirmative obligation as provided for in this subsection (a) shall have an affirmative defense to an allegation of discrimination pursuant to subdivision (a)(1) with respect to new areas. With respect to areas served under a state-issued certificate of franchise authority by such a holder other than new areas, the holder shall have an affirmative defense to a subdivision (a)(1) complaint with respect to any municipality or county to the extent that the holder can establish that twenty-five percent (25%) of the households with access to its cable or video service in the applicable municipality or county are low-income households. (3) After the forty-two (42) months has elapsed, except as provided in this subdivision (a)(3), all holders of a state-issued certificate of franchise authority shall prepare an annual report on the estimated percentage of low-income households with access to its service. This report shall contain information demonstrating the estimated percentage share of low-income households with access to its video or cable service compared with the total number of all customers with access to its video or cable service anywhere within the area served under its state-issued certificate of franchise authority. The report need not be broken out into percentages based on geographic subdivisions, counties, or municipalities. The report shall be provided to all counties and municipalities in which the provider offers video or cable service and to the department. With respect to incumbent cable providers that obtain a state-issued certificate of franchise authority, no annual report shall be required with respect to any service areas that are, or have been subject to, a local franchise. To the extent that such a holder expands cable or video service to new areas pursuant to a state-issued certificate of franchise authority, the incumbent shall file the annual report limited to the new areas. In cases involving new areas where the annual report is required for the holders, if the holder certifies in its application to the department that it will provide cable or video service to all homes within the proposed new area that have at least a density of twenty (20) homes per mile measured from the holder's existing distribution plant, then no additional reports shall be required with respect to such areas. (b) Except as otherwise provided in this section, a holder of a state-issued certificate of franchise authority shall provide access to its cable or video service, or to broadband internet service as provided in subsection (d), to a number of households equal to at least thirty percent (30%) of the households in its franchise area within forty-two (42) months after the date it receives a state-issued certificate of franchise authority. With respect to incumbent cable service providers that obtain a state-issued certificate of franchise authority, the deployment thresholds provided for in this subsection (b) shall not be measured with respect to any service areas that are, or have been, subject to the provisions of a local franchise. To the extent that such a holder expands cable or video service to new areas pursuant to a state-issued certificate of franchise authority, the deployment thresholds shall apply to the new areas only. (c) For purposes of determining whether a holder of a state-issued certificate of franchise authority has violated subsection (a) or (b), a holder of a state-issued certificate of franchise authority may satisfy the requirements of this section through the use of alternate technology, except for direct-to-home satellite service or direct broadcast satellite service, that offers service, functionality, and content that is demonstrably similar to that provided through the holder's video service network and may include a technology that does not require the use of any public rights-of-way or other alternative technology that, in the opinion of the department, is sufficiently similar to satisfy the obligations of this section. The technology utilized to comply with the requirements of this section shall include local public, education and government channels and messages over the emergency alert system as required by this part. (d) (1) For purposes of calculating whether a holder of a state-issued certificate of franchise authority has met the requirements of subsection (b), each household to which the holder provides access to broadband internet service that did not have access to such service from the holder prior to the date of application to the department for a state-issued certificate of franchise authority, shall count as two (2) households for measurement purposes. A household to which the holder of a state-issued certificate of franchise authority provides access to broadband internet service that did not have broadband internet access from any provider prior to the date of application to the department for a state-issued certificate of franchise authority, shall count as four (4) households for measurement purposes. (2) It is the legislative intent that in measuring compliance with this section, the department may rely upon verification provided by Connected Tennessee, as to the expansion of access to broadband internet service to households by a holder of a state-issued certificate of franchise authority. (3) To qualify for any broadband internet service credit provided for in this section, a holder must have submitted to the verifier on the date of its application for a state-issued certificate of franchise authority a base line report identifying all zip codes in the state where the holder provides broadband internet service to all households. If the holder provides broadband internet service to fewer than all households in a zip code the holder shall identify the geographic area within the zip code where broadband internet service is provided. The base line report shall be certified as true and correct by an officer of the holder. In providing a recommendation to the department as to whether a credit should be provided to a holder, the verifier shall provide the department with an explanation on what basis a credit should be provided supported by a sworn certification by an officer of the verifier that the holder is eligible for the specific credit that is recommended. The attorney general and reporter shall have the authority upon reasonable cause to investigate the request for or award of any credit under this section. Upon such an investigation, the attorney general and reporter shall have access to all information relied upon by the verifier with regard to the application for or award of a credit under this part. (4) For the purposes of this subsection (d), households to which a holder extends access to broadband internet service as described in this section shall be counted toward the deployment requirements of subsection (b), notwithstanding that the households may or may not have access to cable or video services from the holder. Any information submitted to, or obtained by the verifier or attorney general and reporter pursuant to this subsection (d) shall be considered proprietary information and therefore is confidential and not subject to the open records laws, compiled in title 10, chapter 7. (e) (1) A holder of a state-issued certificate of franchise authority may apply to the department for a waiver of or an extension of time to meet the requirements of subsection (a) or (b) or for an extension of time for deployment as set forth in § 7-59-305(c)(3) if one (1) or more of the following conditions materially impaired the ability of the holder to meet the requirements: (A) The inability to obtain access to public and private rights-of-way under reasonable terms and conditions; (B) Developments or buildings not being subject to competition because of existing exclusive service arrangements; (C) Developments or buildings being inaccessible using reasonable technical solutions under commercially reasonable terms and conditions; (D) Natural disasters; or (E) Factors beyond the control of the holder of a state-issued certificate of franchise authority. (2) The department may grant the waiver or extension only if the holder has made substantial and continuous effort to meet the requirements of subsection (a) or (b) or of § 7-59-305(c)(3) . If an extension is granted, the department shall establish a new compliance deadline. Absent a complaint brought as provided in § 7-59-312 , the department is not authorized to make any determination regarding a provider's compliance with this section. (f) Notwithstanding any other provision of this part to the contrary, a holder of a state-issued certificate of franchise authority shall not be obligated to provide service outside the holder's franchise area; provided, however, that a holder of a state-issued certificate of franchise authority that is a large telecommunications provider shall not be obligated to provide service to customers within its franchise area for whom the holder does not offer wireline broadband internet service. (g) Except as otherwise provided in this part, a holder of a state-issued certificate of franchise authority shall not be required to comply with, and no entity may impose or enforce, any mandatory build-out or deployment provisions, schedules, or requirements except as required by this section.

Legislative History

Amended by 2013 Tenn. Acts, ch. 204, s 4, eff. 4/23/2013. Acts 2008 , ch. 932, § 12.