Bill S.207

SENATE DOCKET, NO. 1787 FILED ON: 1/18/2019

SENATE . . . . . . . . . . . . . . No. 207

By Mr. Humason (by request), a petition (accompanied by bill, Senate, No. 207) of Kirstin Beatty and Carlos Gonzalez for legislation to ensure safer technology investment by the Massachusetts Broadband Institute. Economic Development and Emerging Technologies.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act ensuring safer technology investment by the Massachusetts Broadband Institute.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 40J of the General Laws is hereby amended by striking the language of Section 6B and inserting thereof the following:-

SECTION 6B. Massachusetts Broadband Institute; board of directors; broadband infrastructure; plan of operation; disbursement of funds; annual report

Section 6B. (a) As used in this section and in section 6C, the following words shall, unless the context clearly requires otherwise, have the following meanings:

''Board'' means the board of the Massachusetts Broadband Institute established by subsection (c).

''Broadband'' means high-speed internet access.

“Communications” means providing for communication across the state, whether through traditional land-line phone service or use of broadband services, and including such services as telephone booths for public telephone calls and options for 911 service.

''Fund'' means the Massachusetts Broadband Incentive Fund established by section 6C.

“Contact information for service” means information necessary for a plaintiff to file service against the owner of a wireless facility, including name and address of the owner or owners. For business entities, names and addresses of the business entity must be provided along with an agent for service. For partnerships, names and addresses of partners must be included. For business entities, executive officers must also provide names and addresses for service to allow for “piercing the corporate veil.”

''Institute'' or “MBI” means the Massachusetts Broadband Institute established by subsection (b).

“Land-line” shall mean a telephone that is hard-wired; which uses a metal wire to transmit communications; and which can function during a power outage for extended periods due to an external source of power transmitted through the metal wire.

“Secure” shall mean broadband service that is designed to limit hacking or intrusion through technical design and cybersecurity; quality, working landline service; and decentralized, hardened utility services ideally disconnected from broadband and ideally protected from an EMP. Except where records are public, secure shall mean safe from surveillance.

(b) The corporation shall establish an institute for investment in broadband and communications infrastructure in the commonwealth, to be known as the Massachusetts Broadband Institute, in recognition of communications as essential not only for business but as essential for democracy and government functions. The executive director of the corporation, subject to the approval of the board, shall appoint a qualified individual as director to manage the affairs of the institute. The mission of the institute shall be to improve the safety and security of communications while supporting reasonable access to communications.

Intent to manipulate the spirit of or failure to comply with its mission, rules, and objectives as stated in this section shall be grounds for a cause of action against the MBI, as well as or against persons complicit. This action may be brought forward by the attorney general; a municipality or municipalities; or citizens of the Commonwealth. A vote of no confidence in the MBI or corporation by the House of Representatives or Senate shall force the attorney general to investigate.

(1) In meeting its mission and objectives, the MBI shall comply with several rules: (i) MBI shall not arrange any contract to allow the commonwealth to assume any liability for wireless facilities and transmissions; (ii) the MBI shall encourage municipal ownership of secure communications infrastructure with additional up-front funding; (iii) As much as possible, MBI shall encourage broadband open access; (iv) MBI shall attend to risks and avoid investing in equipment or software vulnerable to hacking or outside control, such as from corporations or foreign governments with concerning histories; (v) the MBI shall favor investment in structures directly accountable to the public; (vi) MBI shall discourage monopoly control by private providers; (vii) MBI shall reduce reliance upon broadband systems whenever reasonable based on cost and security considerations; (viii) MBI information and proceedings shall be accessible and transparent to the public; (ix) private-public partnerships shall be designed to confer significant benefits including, but not limited to, compliance with MBI mission and objectives, ownership interest, licensing fees, and training or consulting fees; and (x) MBI shall fairly distribute investments across the state to improve safety, security, and accessibility of communications.

(2) To improve technological safety, MBI shall reduce non-ionizing electromagnetic exposures and fulfill these objectives: (i) where possible, decommissioning wireless communications facilities and antennas with due respect for maintaining basic access to essential or emergency communications; (ii) where possible, turning off wireless functionality, reducing other electromagnetic exposures, and hard-wiring broadband access in government facilities, public schools, public libraries, and other public spaces; (iii) choosing to invest in communication systems which emit less and have reduced fields, harmonics, and transients, including traditional land-lines; and (iv) investing in hard-wired, secure broad-band systems or hard-wiring existing secure broadband systems.

(3) Objectives for secure and reasonable access to communications shall include: (i) providing for affordable access to secure land-line service across the commonwealth for essential commonwealth services as well as for residents; (ii) connecting land-line services to secure, decentralized sources of electricity, ideally using direct current or other measures to protect from a destabilizing electromagnetic pulse (EMP) from the sun or weapon; and (iii) assisting utilities in securing utility services through secure mechanical and analog measures rather than through wireless or broadband, with additional consideration for equipment and design safe from an EMP.

(4) Additional objectives shall include (i) identifying and sharing information regarding secure equipment and software, including open source, to provide for secure broadband access for essential state and local services, including education; (ii) assisting with transition to secure software, including open source, and equipment for essential state and local services; (iii) providing relevant training to public entities, MBI employees, and other persons to advance the MBI mission and objectives; and (iv) assisting with development of secure broadband access distributed equitably across the state in public spaces such as libraries, universities, community colleges, and broadband access centers.

(c) The institute shall be governed and its corporate powers exercised by a board of directors, which shall consist of the following 11 members: the secretary of administration and finance or his designee; the secretary of public health, who shall serve as chair; the secretary of housing and economic development; the commissioner of telecommunications and cable or designee; the executive director of the corporation or designee; the attorney general or designee; a representative of the commonwealth’s Radiation Control Agency with expertise in non-ionizing radiation; 3 members to be appointed by the attorney general with expertise in relevant municipal and consumer rights; 3 members to be appointed by the governor, who shall each have knowledge and experience in 1 of the following areas consistent with the mission and objectives of the MBI: cybersecurity; telecommunications infrastructure; and grid or utility security. Each member appointed by the governor or attorney general shall serve a term of 4 years and thereafter until his successor is appointed. Any person appointed to fill a vacancy on the board shall be appointed in a like manner and shall serve for only the unexpired term of such member. Any appointed member shall be eligible for reappointment. An appointed member may be removed by the governor or attorney general for cause.

Six members of the board shall constitute a quorum, and the affirmative vote of a majority of the members present and eligible to vote at a meeting shall be necessary for any action to be taken by the board. The members shall serve without compensation, but each member shall be entitled to reimbursement for actual and necessary expenses incurred in the performance of his official duties. The board shall meet at least 4 times annually.

(d) The corporation shall leverage private sector, state, and federal investment by financing the construction and acquisition of broadband infrastructure to promote the development of broadband and communications safety, security, and access according to its mission and objectives. Broadband infrastructure shall favor fiberoptic cable or cable with comparable safety and shielding of nonionizing radiation, with additional attention given to connectors that in the long term best shield electromagnetic fields.

Subject in all cases to the MBI mission, objectives, and public interest, the corporation may: (i) finance or acquire equipment or other property to be owned by the commonwealth or 1 or more other public entities, where the equipment or other property may be leased or licensed by the corporation for a fee which shall be credited to the fund; (ii) make grants to 1 or more public entities for the financing or acquisition of equipment or other property; and (iii) make grants or loans to nonprofit entities or private corporations for the financing or acquisition of equipment or other property in compliance with the MBI mission and objectives, provided however that contractual arrangements provide relevant licensing fees; ownership interest; regulatory oversight; and fair rates on loans.

The acquisition of an indefeasible right of use of facilities used for the transmission of intelligence by electricity or of a license or other agreement to use electromagnetic spectrum licensed by the federal government shall be the acquisition of an ownership interest in broadband infrastructure and any such transaction shall constitute a transaction with the commonwealth for the purposes of chapter 30B. Any lessee or licensee shall pay lease or license fees to the corporation, which shall credit the fees to the fund. The corporation may provide and pay for advisory services, employees, and technical assistance and take other actions as may be necessary or desired to carry out its purposes.

The board may work in collaboration with the corporation and other quasi-public and nonprofit entities and state agencies, and may provide advisory assistance to local entities, local authorities, public bodies and private corporations for the purposes of maximizing its mission and objectives.

Notwithstanding any general or special law or rule or regulation to the contrary, the department of highways may lease or license for a term not to exceed 25 years any interest in real property deemed appropriate by the corporation and the commissioner of highways to promote the objectives of this chapter. The nature and extent of such interest shall be transferred on such terms and conditions as the commissioner of highways may determine. The terms and conditions of any conveyance executed pursuant to this subsection shall be approved by the commissioner of capital asset management, in consultation with the inspector general and the secretary of transportation.

Any interest acquired by the corporation may be leased or licensed by the corporation for use by public entities or nonprofit or for-profit private sector entities subject to the approval of the commissioner of highways and subject to this section including, without limitation, such right of reverter at the expiration of the term. Given the parameters provided by the MBI mission and goals, the corporation shall lease or license any such interest with competitive processes and procedures within MBI constraints as may be reviewed and approved by the inspector general.

Notice that such interest if available for lease or license shall be publicly advertised in 2 daily newspapers of general circulation published in the city of Boston and, if such real property is located in any other city or town, in a newspaper of general circulation published in such other city or town, once a week for 2 successive weeks. Such advertisements shall state the availability of such interest, the nature of the competitive process and other information deemed relevant, including the time and place where all pertinent information relative to the interest to be leased or licensed may be obtained, the criteria for selection of a successful proponent, and the time, place and manner for the submission of bids, proposals and the opening thereof. The consideration for any such interest shall be within the estimated range of the fair market value of the interest as determined by the corporation based upon an independent professional appraisal. However, when necessary to forestall or balance monopoly, MBI shall provide or allow for exceptions to competitive bidding. Any such interest conveyed by the department of highways shall revert to the commonwealth at the expiration of any such term.

The corporation may exercise any of its powers to assist or enable the institute to fulfill its purposes as set forth in this section, including the powers set forth in clause (e) of section 4. Without limiting the generality of the foregoing, the corporation shall have the power to develop, lease or otherwise acquire, own, hold, dispose of and encumber conduit, fiber, towers and other real and personal property related to broadband infrastructure that shall be necessary or convenient to the fulfillment of its mission and objectives. The exercise by the corporation of any such powers shall be deemed and held to be an essential governmental function.

(e) The board shall collect information from reasonably available sources including, but not limited to: municipalities and other public entities and agencies of the commonwealth, local and regional nonprofit entities and telecommunications and broadband service providers to develop and maintain an inventory of: (i) locations where telecommunications and broadband services are not available in the commonwealth; (ii) locations where telecommunications and broadband infrastructure is available or is likely to be available to support the provision of services to unserved and underserved areas; (iii) locations where new infrastructure may be necessary to support the provision of secure and safe services to unserved and underserved areas; (iv) the quality of such services, including, but not limited to, speed of data transmission, length of service during power outage, and cost of such services including landline service; (v) providing a map to the public of wireless facilities including contact information for service and emergencies; (vi) providing a map for the public of electric and magnetic peak power measurements across the commonwealth for wireless communications; and (vii) and may choose to assess peak power measurements across the commonwealth.

(f) The board shall establish a detailed long-term plan for the operation of the institute and the administration of the fund and shall consult with the joint committee on telecommunications, utilities and energy; the joint committee on children, families, and persons with disabilities; and the joint committee on economic development and emerging technologies on the plan. The plan, and any amendments thereto, shall be subject to the approval of the secretary of health and human services and the secretary of administration and finance and shall be filed with the clerks of the house of representatives and the senate who shall forward the same to the house and senate committees on ways and means, the joint committee on telecommunications, utilities and energy and the joint committee on economic development and emerging technologies.

(g) The board shall annually adopt an operating plan governing disbursements from the fund and, to the extent the plan provides for disbursement of appropriations or other moneys authorized by the general court, the plan shall be subject to the approval of the secretary of housing and economic development and the secretary of administration and finance. The board shall file the plan, and any amendments thereto, with the clerks of the house of representatives and the senate who shall forward the same to the house and senate committees on ways and means, on children, families, and persons with disabilities, the joint committee on telecommunications, utilities and energy and the joint committee on economic development and emerging technologies.

(h) The board shall promulgate rules and regulations for the administration and enforcement of this section and section 6C.

(i) The board shall review and recommend changes in laws, rules, programs and policies of the commonwealth and its agencies and subdivisions to further financing, infrastructure and development for broadband access in the commonwealth.

(j) The board shall prepare, publish and distribute, with or without charge, as the institute may determine, any studies, reports and bulletins and other material as the institute deems appropriate.

(k) The institute shall file an annual report of its activities with the governor and the clerks of the house of representatives and the senate who shall forward the same to the joint committee on telecommunications, utilities and energy, the joint committee on economic development and emerging technologies, on children, families, and persons with disabilities, and the house and senate committees on ways and means.

(l) Actions of the board may take effect immediately and notice thereof shall be published and posted. Meetings of the board shall be subject to section 11A1/2 of chapter 30A. Records pertaining to the activities of the institute shall be subject to section 10 of chapter 66, unless exempted under subsection (h) of section 12. The operations of the institute shall be subject to chapters 268A and 268B; provided, however, that the members of the board shall be considered directors for the purposes of the fourth, fifth and seventh paragraphs of section 3.

(m) Sections 38A1/2 to 38O, inclusive, of chapter 7, section 39M of chapter 30, subject to the provisions of subsection (c) of section 4A and sections 44A to 44J, inclusive, of chapter 149 shall apply to the operations of the institute.

SECTION 2. Chapter 40J of the General Laws is hereby amended by striking the language of Section 6C and inserting thereof the following:-

Section 6C: Massachusetts Communications Safety and Security Incentive Fund

Section 6C. The corporation shall establish a fund to be known as the Massachusetts Communications Safety and Security Incentive Fund. The corporation shall hold the fund separate and apart from its other funds, to finance the activities of the Massachusetts Broadband Institute. The corporation shall credit to the fund any appropriations, bond proceeds or other moneys authorized by the general court and specifically designated to be credited to the fund, and any other moneys legally available to the corporation which the board of the corporation may determine to deposit in the fund.

SECTION 3. Section 1A of Chaper 40J of the General Laws is hereby amended by inserting after the last sentence the following sentence:-

In advancing direct economic development initiatives, the corporation shall include in this definition the requirement to promote and support public and business systems which support or allow for access to basic services and utilities, as well as for safety and security, in order to

Name:	District/Address:
Kirstin Beatty
Carlos González	10th Hampden	1/31/2019