Authorizes telephone and telegraph corporations to issue stocks, bonds or other forms of indebtedness for the purposes of expanding broadband services when such corporation is receiving a federal grant or loan therefor.
BILL NUMBER:S5863 REVISED 6/21/13
TITLE OF BILL: An act to amend the public service law, in relation to the issuance of stocks, bonds and other forms of indebtedness for the purpose of expanding broadband services
PURPOSE: This legislation would authorize telephone and telegraph corporations to issue stocks, bonds or other forms of indebtedness for the purposes of expanding broadband services.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 would amend section 101 of the public service law to clarify that federal loans for the expansion of broadband services can be used by telephone and telegraph companies under their application for authority. Further, the public service commission must provide a determination on an application for authority with respect to federal loan money for broadband expansion within sixty calendar days. Additionally, proceeds from federal loans for the expansion of broadband services are exempted from the requirement that all proceeds/issue be applied to the purposes specified under an Incumbent Local Exchange Carriers' application for authority if the Public Service Commission does not provide a determination within GO calendar days.
JUSTIFICATION: NY has been ranked fifth nationwide for internet speeds.However, as many as 6.4 million people cannot access or do not subscribe to broadband in our state. Further, a lack of broadband access is an immense impediment to healthcare, economic development/recovery, education, technological advancement and job growth in rural New York.
Unfortunately, due to an inconsistency in the Public Service law, many of the SO broadband providers in NY axe unable to access federal funding from the Federal Communications Commission. These companies were originally known as Incumbent Local Exchange Carriers (ILECs). These ILECs were telephone companies that did not add broadband services to their customer offerings until long after they had done their original application for authority. Because these companies are ILECs, the Public Service Commission has the authority to regulate them based on their original designation as "telegraph and telephone corporations".
These companies must seek PSC approval before accepting any loans, including federal giants/loans. Due to the current language in the Public Service law, the PSC is unable to approve any loans incurred by ILECs with a time period longer than 12 months unless it is specifically allowed under the Public Service law. In addition, the PSC must certify that the proceeds of the loan are being used for purposes which are specified in the corporation's original application for authority which was created before broadband was an available service.
In last mile access situations, federal funding has been the primary source of capital, with over $176 million given to date. The USDA offers several different grant and loan programs, with over $600 million available for low interest telecommunications loans.
Because broadband was not originally provided/offered by ILECs, the PSC cannot certify that loan proceeds used for alleviating last mile broadband access issues are being used for an ILECs original purpose under their application for, authority which was limited to "telephone and telegraph." Therefore, the PSC can't approve the loans, and the broadband providers cannot get the funds.
This bill provides for an expedited review of the application for authority, to include the proceeds of federal loans for the expansion of broadband services by the Public Service Commission to ensure that ILECs are able to access available federal funds. In addition, it clarifies that any application deemed approved after 60 days can apply the issue or proceeds of a federal loan to broadband expansion.
PRIOR LEGISLATIVE HISTORY: New bill
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 5863 2013-2014 Regular Sessions IN SENATE June 18, 2013 ___________Introduced by Sen. YOUNG -- (at request of the Legislative Commission on Rural Resources) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the public service law, in relation to the issuance of stocks, bonds and other forms of indebtedness for the purpose of expanding broadband services THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 101 of the public service law, as amended by chap- ter 443 of the laws of 2000, is amended to read as follows: S 101. Authority to issue stock, bonds and other forms of indebt- edness. A telegraph or telephone corporation may, when authorized by the commission, issue stock, bonds, notes or other evidences of indebt- edness payable at periods of more than twelve months after the date thereof, or a receiver of such a corporation, if duly authorized by law, may issue receiver's certificates, when necessary for the acquisition of property, the construction, completion, extension or improvement of its facilities or the improvement or maintenance of its service within the state, or for the discharge or lawful refunding of its obligations, or reimbursement of moneys actually expended from the income from any source, within five years next prior to the filing of the application therefor, or for any of such purposes, provided, however, that no authority shall be granted authorizing such issue for reimbursement of moneys expended from income for betterments or replacements unless the applicant shall have kept its accounts and vouchers of such expenditures in such manner as to enable the commission to ascertain the amount of moneys so expended and the purposes for which such expenditures were made. Stock may be issued to stockholders as a stock dividend provided that there shall have been secured from the commission authority for such issuance and for a transfer of surplus to capital in an amount equal to the par or stated value of the stock so authorized and that theEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11588-01-3 S. 5863 2
applicant has certified in the application for authority that a sum equal to the amount to be so transferred was expended for the purposes enumerated in this section. Stock may be issued to an employee or direc- tor of a telegraph or telephone corporation under a stock option plan pursuant to which such corporation grants options to its employees or directors to purchase shares of stock, such options to be exercisable for a stated period of time to purchase shares of stock at the market value of the stock at the time of issuance of the option, provided that there shall have been secured from the commission authority for such issuance and that the applicant has certified in the application for authority that the proceeds from the exercise of the stock options are needed for one of the purposes enumerated in this section. The issue of stocks, bonds or other evidences of indebtedness, within the meaning of this section, shall include the sale by any such corporation of any such securities previously issued in compliance with the provisions of this section and subsequently reacquired by such corporation, provided, however, for good cause shown the commission may exempt from the restriction hereof stocks, bonds or other evidences of indebtedness. The application for authority shall state the amount of any such issue and the purposes to which it or its proceeds are to be applied and shall certify that the money, property or labor procured or to be procured or paid for by such issue or its proceeds, INCLUDING PROCEEDS FROM FEDERAL LOANS FOR THE EXPANSION FOR BROADBAND SERVICES, has been or is reason- ably required for the purposes specified in the application for authori- ty, and that such purposes are in no part reasonably chargeable to oper- ating expenses or to income except in the case of bonds, notes or other evidences of indebtedness as may be specifically identified in the application for authority. For the purpose of enabling the commission to determine whether it should authorize such issuance, the commission shall have the power to make such inquiry or investigation, hold such hearings and examine such witnesses, books, papers, documents or contracts as it may determine of importance in enabling it to reach a determination, PROVIDED THAT ANY DETERMINATION FROM AN INQUIRY, INVESTI- GATION OR EXAMINATION OF PROCEEDS OF FEDERAL LOANS FOR THE EXPANSION OF BROADBAND SERVICES SHALL BE PERFORMED WITHIN SIXTY CALENDAR DAYS OF RECEIPT OF SUCH TELEPHONE AND TELEGRAPH PROVIDER'S APPLICATION FOR AUTHORITY, OR SUCH APPLICATION SHALL BE DEEMED APPROVED. No such corpo- ration shall, without the consent of the commission, apply any such issue or its proceeds to any purpose not specified in the application for authority, EXCEPT WHEN THERE HAS NOT BEEN A DETERMINATION WITHIN SIXTY CALENDAR DAYS FROM THE COMMISSION WITH RESPECT TO PROCEEDS OF FEDERAL LOANS FOR THE EXPANSION OF BROADBAND SERVICES. Such telegraph corporation or telephone corporation may issue notes for proper corpo- rate purposes and not in violation of any provision of this chapter or of any other act, payable at periods of not more than twelve months without the consent of the commission; but no such note shall, in whole or in part, directly or indirectly, be refunded by any issue of stock or bonds, or by any evidences of indebtedness running for more than twelve months, without the consent of the commission. No telegraph corporation or telephone corporation shall be required, however, to apply to the commission for authority to issue stocks, bonds, notes or other evidence of indebtedness except for the acquisition of property, the construction, completion, extension or improvement of its facilities, or the improvement or maintenance of its service within the state, or the discharge or refunding of obligations, or reimbursement of moneys actu- ally expended for such purposes. The commission shall have power toS. 5863 3
require every such corporation to file with the commission after the issuance of stocks, bonds, notes or other evidences of indebtedness issued with or without the approval of the commission as provided in this section, a notice of such transaction in such form as the commis- sion may prescribe. The commission shall have no power to authorize the capitalization of any franchise or right to be a corporation, nor to authorize the capitalization of any franchise or the right to own, oper- ate or enjoy any franchise whatsoever in excess of the amount (exclusive of any tax or annual charge) actually paid to the state or any political subdivision thereof, as the consideration of the grant of such franchise or right, nor to authorize the issuance of any stocks or other securi- ties for any purposes other than those enumerated in this section. Nor shall the corporate stock of the corporation formed by the merger or consolidation of two or more other corporations exceed the sum of the capital stock of the corporations so consolidated, at the par value thereof, or such sum and any additional sum actually paid in cash; nor shall any contract for consolidation or lease be capitalized in the stock of any corporation whatever; nor shall any corporation hereafter issue any bonds against or as a lien upon any contract for consolidation or merger. Notwithstanding the foregoing provisions of this section, any application for approval under this section shall be deemed granted by the commission forty-five days after such application is filed for approval, unless the commission, or its designee, determines and informs the applicant in writing within such forty-five day period that the public interest requires the commission's review and its written order. S 2. This act shall take effect immediately.