Chapter 1093 Oregon Laws 1999

Session Law

AN ACT

SB 622

Relating to telecommunications; creating new provisions; amending ORS 133.721, 164.365, 192.501, 221.420, 221.450, 221.505, 221.510, 221.515, 222.005, 222.170, 401.710, 401.765, 411.070, 461.055, 479.540, 552.310, 759.990, 815.232 and 836.050; repealing ORS 221.417, 283.525, 283.530 and 283.535; appropriating money; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 133.721 is amended to read:

133.721. As used in ORS 41.910, 133.724, 133.729 to 133.739 and this section, unless the context requires otherwise:

(1) "Aggrieved person" means a person who was a party to any wire, electronic or oral communication intercepted under ORS 133.724 or a person against whom the interception was directed.

(2) "Contents," when used with respect to any wire, electronic or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication.

(3) "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a radio, electromagnetic, photoelectronic or photo-optical system, or transmitted in part by wire, but does not include:

(a) Any oral communication or any communication which is completely by wire; or

(b) Any communication made through a tone-only paging device.

(4) "Electronic, mechanical or other device" means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof which is furnished to the subscriber or user by a telecommunications [utility] carrier in the ordinary course of its business and which is being used by the subscriber or user in the ordinary course of its business or being used by a telecommunications [utility] carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of official duties; or

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(5) "Intercept" means the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

(6) "Investigative or law enforcement officer" means an officer or other person employed by a county sheriff or municipal police department, the Oregon State Police, Attorney General, a district attorney or the Department of Corrections, and officers or other persons employed by law enforcement agencies of other states or the Federal Government, to investigate or enforce the law.

(7) "Oral communication" means any oral communication, other than a wire communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.

[(8) "Telecommunications utility" means a telecommunications utility, as defined in ORS 759.005.]

(8) "Telecommunications carrier" means:

(a) A telecommunications utility as defined in ORS 759.005; or

(b) A cooperative corporation organized under ORS chapter 62 that provides telecommunications services.

(9) "Telecommunications service" has the meaning given that term in ORS 759.005.

[(9)] (10) "Wire communication" means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, whether furnished or operated by a public utility or privately owned or leased.

SECTION 2. ORS 164.365 is amended to read:

164.365. (1) A person commits the crime of criminal mischief in the first degree who, with intent to damage property, and having no right to do so nor reasonable ground to believe that the person has such right:

(a) Damages or destroys property of another:

(A) In an amount exceeding $500;

(B) By means of an explosive;

(C) By starting a fire in an institution while the person is committed to and confined in the institution;

(D) Which is a livestock animal as defined in ORS 164.055;

(E) Which is the property of a public utility, telecommunications [utility] carrier, railroad, public transportation facility or medical facility used in direct service to the public;

(F) Which is a police animal and the police animal suffers death or serious physical injury; or

(G) By intentionally interfering with, obstructing or adulterating in any manner the service of a public utility, telecommunications [utility] carrier, railroad, public transportation facility or medical facility; or

(b) Intentionally uses, manipulates, arranges or rearranges the property of a public utility, telecommunications [utility] carrier, railroad, public transportation facility or medical facility used in direct service to the public so as to interfere with its efficiency.

(2) As used in subsection (1) of this section:

(a) "Institution" includes state and local correctional facilities, mental health facilities, juvenile detention facilities and state training schools.

(b) "Medical facility" means a health care facility as defined in ORS 442.015, a licensed physician's office or anywhere a licensed medical practitioner provides health care services.

(c) "Public utility" has the meaning provided for that term in ORS 757.005 and includes any cooperative, people's utility district or other municipal corporation providing an electric, gas, water or other utility service.

(d) "Railroad" has the meaning provided for that term in ORS 824.020.

(e) "Public transportation facility" means any property, structure or equipment used for or in connection with the transportation of persons for hire by rail, air or bus, including any railroad cars, buses or airplanes used to carry out such transportation.

(f) "Telecommunications [utility] carrier" has the meaning [provided for] given that term in [ORS 759.005] ORS 133.721.

(3) Criminal mischief in the first degree is a Class C felony.

SECTION 3. ORS 192.501 is amended to read:

192.501. The following public records are exempt from disclosure under ORS 192.410 to 192.505 unless the public interest requires disclosure in the particular instance:

(1) Records of a public body pertaining to litigation to which the public body is a party if the complaint has been filed, or if the complaint has not been filed, if the public body shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this subsection shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation;

(2) Trade secrets. "Trade secrets," as used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within an organization and which is used in a business it conducts, having actual or potential commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it;

(3) Investigatory information compiled for criminal law purposes. The record of an arrest or the report of a crime shall be disclosed unless and only for so long as there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim. Nothing in this subsection shall limit any right constitutionally guaranteed, or granted by statute, to disclosure or discovery in criminal cases. For purposes of this subsection, the record of an arrest or the report of a crime includes, but is not limited to:

(a) The arrested person's name, age, residence, employment, marital status and similar biographical information;

(b) The offense with which the arrested person is charged;

(c) The conditions of release pursuant to ORS 135.230 to 135.290;

(d) The identity of and biographical information concerning both complaining party and victim;

(e) The identity of the investigating and arresting agency and the length of the investigation;

(f) The circumstances of arrest, including time, place, resistance, pursuit and weapons used; and

(g) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice;

(4) Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given and if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure are included in this exemption, to the extent that disclosure would create a risk that the result might be affected;

(5) Information consisting of production records, sale or purchase records or catch records, or similar business records of a private concern or enterprise, required by law to be submitted to or inspected by a governmental body to allow it to determine fees or assessments payable or to establish production quotas, and the amounts of such fees or assessments payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. This exemption does not include records submitted by long term care facilities as defined in ORS 442.015 to the state for purposes of reimbursement of expenses or determining fees for patient care. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding;

(6) Information relating to the appraisal of real estate prior to its acquisition;

(7) The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections;

(8) Investigatory information relating to any complaint filed under ORS 659.040 or 659.045, until such time as the complaint is resolved under ORS 659.050, or a final administrative determination is made under ORS 659.060;

(9) Investigatory information relating to any complaint or charge filed under ORS 243.676 and 663.180;

(10) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732;

(11) Information concerning the location of archaeological sites or objects as those terms are defined in ORS 358.905, except if the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe's cultural or religious activities. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist facility or attraction;

(12) A personnel discipline action, or materials or documents supporting that action;

(13) Information developed pursuant to ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100, regarding the habitat, location or population of any threatened species or endangered species;

(14) Writings prepared by or under the direction of faculty of public educational institutions, in connection with research, until publicly released, copyrighted or patented;

(15) Computer programs developed or purchased by or for any public body for its own use. As used in this subsection, "computer program" means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from such computer system, and any associated documentation and source material that explain how to operate the computer program. "Computer program" does not include:

(a) The original data, including but not limited to numbers, text, voice, graphics and images;

(b) Analyses, compilations and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical and statistical formulas which would be used if the manipulated forms of the original data were to be produced manually;

(16) Data and information provided by participants to mediation under section 5, chapter 967, Oregon Laws 1989;

(17) Investigatory information relating to any complaint or charge filed under ORS chapter 654, until a final administrative determination is made or, if a citation is issued, until an employer receives notice of any citation;

(18) Specific operational plans in connection with an anticipated threat to individual or public safety for deployment and use of personnel and equipment, prepared and used by a law enforcement agency, if public disclosure thereof would endanger the life or physical safety of a citizen or law enforcement officer or jeopardize the law enforcement activity involved;

(19)(a) Audits or audit reports required of a telecommunications [utility] carrier. As used in this paragraph, "audit or audit report [of a telecommunications utility]" means any external or internal audit or audit report pertaining to a telecommunications [utility] carrier, as defined in [ORS 759.005] ORS 133.721, or pertaining to a corporation having an affiliated interest, as defined in ORS 759.010, with a telecommunications [utility] carrier that is intended to make the operations of the entity more efficient, accurate or compliant with applicable rules, procedures or standards, that may include self-criticism and that has been filed by the telecommunications [utility] carrier or affiliate under compulsion of state law. "Audit or audit report [of a telecommunications utility]" does not mean an audit of a cost study that would be discoverable in a contested case proceeding and that is not subject to a protective order.

(b) Financial statements. As used in this paragraph, "financial statement" means a financial statement of a nonregulated corporation having an affiliated interest, as defined in ORS 759.010, with a telecommunications [utility] carrier, as defined in [ORS 759.005] ORS 133.721; and

(20) The residence address of an elector if authorized under ORS 247.965 and subject to ORS 247.967.

SECTION 4. ORS 192.501, as amended by section 13, chapter 967, Oregon Laws 1989, section 2, chapter 636, Oregon Laws 1991, section 2, chapter 678, Oregon Laws 1991, section 5, chapter 616, Oregon Laws 1993, section 2, chapter 787, Oregon Laws 1993, and section 3, chapter 604, Oregon Laws 1995, is amended to read:

192.501. The following public records are exempt from disclosure under ORS 192.410 to 192.505 unless the public interest requires disclosure in the particular instance:

(1) Records of a public body pertaining to litigation to which the public body is a party if the complaint has been filed, or if the complaint has not been filed, if the public body shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this subsection shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation;

(2) Trade secrets. "Trade secrets," as used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within an organization and which is used in a business it conducts, having actual or potential commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it;

(3) Investigatory information compiled for criminal law purposes. The record of an arrest or the report of a crime shall be disclosed unless and only for so long as there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim. Nothing in this subsection shall limit any right constitutionally guaranteed, or granted by statute, to disclosure or discovery in criminal cases. For purposes of this subsection, the record of an arrest or the report of a crime includes, but is not limited to:

(a) The arrested person's name, age, residence, employment, marital status and similar biographical information;

(b) The offense with which the arrested person is charged;

(c) The conditions of release pursuant to ORS 135.230 to 135.290;

(d) The identity of and biographical information concerning both complaining party and victim;

(e) The identity of the investigating and arresting agency and the length of the investigation;

(f) The circumstances of arrest, including time, place, resistance, pursuit and weapons used; and

(g) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice;

(4) Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given and if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure are included in this exemption, to the extent that disclosure would create a risk that the result might be affected;

(5) Information consisting of production records, sale or purchase records or catch records, or similar business records of a private concern or enterprise, required by law to be submitted to or inspected by a governmental body to allow it to determine fees or assessments payable or to establish production quotas, and the amounts of such fees or assessments payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. This exemption does not include records submitted by long term care facilities as defined in ORS 442.015 to the state for purposes of reimbursement of expenses or determining fees for patient care. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding;

(6) Information relating to the appraisal of real estate prior to its acquisition;

(7) The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections;

(8) Investigatory information relating to any complaint filed under ORS 659.040 or 659.045, until such time as the complaint is resolved under ORS 659.050, or a final administrative determination is made under ORS 659.060;

(9) Investigatory information relating to any complaint or charge filed under ORS 243.676 and 663.180;

(10) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732;

(11) Information concerning the location of archaeological sites or objects as those terms are defined in ORS 358.905, except if the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe's cultural or religious activities. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist facility or attraction;

(12) A personnel discipline action, or materials or documents supporting that action;

(13) Information developed pursuant to ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100, regarding the habitat, location or population of any threatened species or endangered species;

(14) Writings prepared by or under the direction of faculty of public educational institutions, in connection with research, until publicly released, copyrighted or patented;

(15) Computer programs developed or purchased by or for any public body for its own use. As used in this subsection, "computer program" means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from such computer system, and any associated documentation and source material that explain how to operate the computer program. "Computer program" does not include:

(a) The original data, including but not limited to numbers, text, voice, graphics and images;

(b) Analyses, compilations and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical and statistical formulas which would be used if the manipulated forms of the original data were to be produced manually;

(16) Investigatory information relating to any complaint or charge filed under ORS chapter 654, until a final administrative determination is made or, if a citation is issued, until an employer receives notice of any citation;

(17) Specific operational plans in connection with an anticipated threat to individual or public safety for deployment and use of personnel and equipment, prepared and used by a law enforcement agency, if public disclosure thereof would endanger the life or physical safety of a citizen or law enforcement officer or jeopardize the law enforcement activity involved;

(18)(a) Audits or audit reports required of a telecommunications [utility] carrier. As used in this paragraph, "audit or audit report [of a telecommunications utility]" means any external or internal audit or audit report pertaining to a telecommunications [utility] carrier, as defined in [ORS 759.005] ORS 133.721, or pertaining to a corporation having an affiliated interest, as defined in ORS 759.010, with a telecommunications [utility] carrier that is intended to make the operations of the entity more efficient, accurate or compliant with applicable rules, procedures or standards, that may include self-criticism and that has been filed by the telecommunications [utility] carrier or affiliate under compulsion of state law. "Audit or audit report [of a telecommunications utility]" does not mean an audit of a cost study that would be discoverable in a contested case proceeding and that is not subject to a protective order.

(b) Financial statements. As used in this paragraph, "financial statement" means a financial statement of a nonregulated corporation having an affiliated interest, as defined in ORS 759.010, with a telecommunications [utility] carrier, as defined in [ORS 759.005] ORS 133.721; and

(19) The residence address of an elector if authorized under ORS 247.965 and subject to ORS 247.967.

SECTION 5. Nothing in the amendments to ORS 192.501 by section 3 or 4 of this 1999 Act affects the operative date provisions of section 17, chapter 967, Oregon Laws 1989, as amended by section 1, chapter 277, Oregon Laws 1995.

SECTION 6. ORS 221.420 is amended to read:

221.420. (1) As used in this section:

(a) "Public utility" has the meaning for that term provided in ORS 757.005.

(b) "Commission" means the Public Utility Commission of Oregon.

(c) "Council" means the common council, city council, commission or any other governing body of any municipality wherein the property of the public utility is located.

(d) "Municipality" means any town, city or other municipal government wherein property of the public utility is located.

(e) "Service" is used in its broadest and most inclusive sense and includes equipment and facilities.

[(f) "Telecommunications utility" has the meaning for that term provided in ORS 759.005.]

[(g)] (f) "Heating company" means any person furnishing heat but not electricity or natural gas to its customers.

(2) Every city may:

(a) Determine by contract or prescribe by ordinance or otherwise, the terms and conditions, including payment of charges and fees, upon which any public utility, [telecommunications utility,] electric cooperative, people's utility district or heating company may be permitted to occupy the streets, highways or other public property within such city and exclude or eject any public utility[, telecommunications utility] or heating company therefrom.

(b) Require any public utility [or telecommunications utility], by ordinance or otherwise, to make such modifications, additions and extensions to its physical equipment, facilities or plant or service within such city as shall be reasonable or necessary in the interest of the public, and designate the location and nature of all additions and extensions, the time within which they must be completed, and all conditions under which they must be constructed.

(c) [Except for a telecommunications utility,] Fix by contract, prescribe by ordinance, or in any other lawful manner, the rates, charges or tolls to be paid to, or that may be collected by, any public utility or the quality and character of each kind of product or service to be furnished or rendered by any public utility furnishing any product or service within such city. No schedule of rates, charges or tolls, fixed in the manner provided in this paragraph, shall be so fixed for a longer period than five years. Whenever it is proposed by any city to enter into any contract, or to enact any ordinance, or other municipal law or regulation concerning the matters specified in this paragraph, a copy of such proposed contract, ordinance or other municipal law or resolution shall be filed with the Public Utility Commission of Oregon before the same may be lawfully signed or enacted, as the case may be, and the commission shall thereafter have 90 days within which to examine into the terms thereof. If the commission is of the opinion that in any respect the provisions of the proposed contract, ordinance or other municipal law or resolution are not in the public interest, the commission shall file, in writing, with the clerk or other officer who has the custody of the files and records of the city, the commission's reasons therefor. If the objections are filed within said period of 90 days, no proposed contract, ordinance or other municipal law or regulation shall be valid or go into effect until it has been submitted to or ratified by the vote of the electors of the city. Unless and until a city exercises its powers as provided in this paragraph, the commission is vested with all powers with respect to the matters specified in this paragraph. If the schedule of rates, charges and tolls or the quality and character of each kind of product or service is fixed by contract, ordinance or other municipal law or regulation and in the manner provided in this paragraph, the commission has no power or jurisdiction to interfere with, modify or change it during the period fixed thereby. Upon the expiration of said period such powers shall again be vested in the commission, to be exercised by the commission unless and until a new schedule of rates or the quality and character for such service or product is fixed or prescribed by contract, ordinance or other municipal law or regulation in the manner provided in this paragraph.

(d) Provide for a penalty for noncompliance with the provisions of any charter provision, ordinance or resolution adopted by the city in furtherance of the powers specified in this subsection.

SECTION 7. ORS 221.450 is amended to read:

221.450. The city council or other governing body of every incorporated city may levy and collect from every electric cooperative, people's utility district, privately owned public utility, telecommunications [utility] carrier as defined in ORS 133.721 or heating company operating for a period of 30 days within the city without a franchise from the city and actually using the streets, alleys or highways, or all of them, in such city for other than travel on such streets or highways, a privilege tax for the use of those public streets, alleys or highways, or all of them, in such city in an amount not exceeding five percent of the gross revenues of the cooperative, utility, district or company currently earned within the boundary of the city. However, the gross revenues earned in interstate commerce or on the business of the United States Government shall be exempt from the provisions of this section. The privilege tax authorized in this section shall be for each year, or part of each year, such utility, cooperative, district or company operates without a franchise.

SECTION 8. ORS 221.505 is amended to read:

221.505. The Legislative Assembly recognizes that significant changes have occurred in the regulation, technology and marketing of telecommunications [utilities] carriers as defined in ORS 133.721 over the past decade. It is the intent of the Legislative Assembly in adopting the privilege tax authorized by ORS 221.505 to 221.515 and 759.105 to respond to these changes by establishing a uniform base for municipal charges for street use by telecommunications [utilities] carriers.

SECTION 9. ORS 221.510 is amended to read:

221.510. (1) As used in this section:

(a) "Telecommunications [utility] carrier" has the meaning given that term in [ORS 759.005] ORS 133.721.

(b) "Commission" means the Public Utility Commission of Oregon.

(c) "Council" means the common council, city council, commission or any other governing body of any municipality wherein the property of the telecommunications [utility] carrier is located.

(d) "Municipality" means any town, municipality or other municipal government wherein property of the telecommunications [utility] carrier is located.

(e) "Service" is used in its broadest and most inclusive sense and includes equipment and facilities.

(2) Every municipality may:

(a) Determine by contract, or prescribe by ordinance or otherwise, the terms and conditions, including payment of a privilege tax to the extent authorized by ORS 221.515 and other charges and fees, upon which any telecommunications [utility] carrier may be permitted to occupy the streets, highways or other public property within such municipality and exclude or eject any telecommunications [utility] carrier therefrom.

(b) Require any telecommunications [utility] carrier, by ordinance or otherwise, to make such modifications, additions and extensions to its physical equipment, facilities or plant or service within such municipality as shall be reasonable or necessary in the interest of the public, and designate the location and nature of all additions and extensions, the time within which they must be completed and all conditions under which they must be constructed.

(c) Provide for a penalty for noncompliance with the provisions of any charter provision, ordinance or resolution adopted by the municipality in furtherance of the powers specified in this subsection.

SECTION 10. ORS 221.515 is amended to read:

221.515. (1) The council of every municipality in this state may levy and collect from every telecommunications [utility] carrier operating within the municipality and actually using the streets, alleys or highways, or all of them, in such municipality for other than travel, a privilege tax for the use of those streets, alleys or highways, or all of them, in such municipality in an amount which may not exceed seven percent of the gross revenues of the telecommunications [utility] carrier currently earned within the boundaries of the municipality. The privilege tax authorized in this section shall be for each year, or part of each year, that such telecommunications [utility] carrier operates within the municipality.

(2) As used in this section, "gross revenues" means those revenues derived from exchange access services, as defined in ORS 401.710, less net uncollectibles from such revenues.

(3) A telecommunications [utility] carrier paying the privilege tax authorized by this section shall not be required to pay any additional fee, compensation or consideration, including the free use or construction of telecommunications facilities and equipment, to the municipality for its use of public streets, alleys, or highways, or all of them, and shall not be required to pay any additional tax or fee on the gross revenues that are the measure of the privilege tax. As used in this subsection, "use" includes, but is not limited to, street openings, construction and maintenance of fixtures or facilities by telecommunications [utilities] carriers. As used in this subsection, "additional fee, compensation or consideration" does not include commissions paid for siting public telephones on municipal property. To the extent that separate fees are imposed by the municipality on telecommunications [utilities] carriers for street openings, construction, inspection or maintenance of fixtures or facilities, such fees may be deducted from the privilege tax authorized by this section. However, telecommunications [utilities] carriers shall not deduct charges and penalties imposed by the municipality for noncompliance with charter provisions, ordinances, resolutions or permit conditions from the privilege tax authorized by this section.

(4) For purposes of this section, "telecommunications carrier" has the meaning given that term in ORS 133.721.

SECTION 11. ORS 222.005 is amended to read:

222.005. (1) When territory is approved for annexation to a city by city council action under ORS chapter 199 or this chapter, the recorder of the city or other city officer or agency performing the duties of recorder under this section, not later than 10 working days after passage of a resolution or ordinance approving the proposed annexation, shall provide by certified mail to all public utilities, electric cooperatives and telecommunications [utilities] carriers operating within the city each site address to be annexed as recorded on county assessment and tax rolls, a legal description and map of the proposed boundary change and a copy of the city council's resolution or ordinance approving the proposed annexation.

(2) Additional or increased fees or taxes, other than ad valorem taxes, imposed on public utilities, electric cooperatives and telecommunications [utilities] carriers as a result of an annexation of territory to a city shall become effective on the effective date of the annexation if notice of the annexation is given to public utilities, electric cooperatives and telecommunications [utilities] carriers by certified mail not later than 10 working days after the effective date of the annexation. However, if notification of the effective date of the annexation is provided to the public utilities, electric cooperatives and telecommunications [utilities] carriers later than the 10th working day after the effective date of the annexation, the additional or increased fees or taxes become effective on the date of notification.

(3) As used in this section:

(a) "Effective date of annexation" is the effective date described in ORS chapter 199 or this chapter, whichever is applicable.

(b) "Public utility" has the meaning given that term in ORS 757.005.

(c) "Telecommunications carrier" has the meaning given that term in ORS 133.721.

SECTION 12. ORS 222.170 is amended to read:

222.170. (1) The legislative body of the city need not call or hold an election in any contiguous territory proposed to be annexed if more than half of the owners of land in the territory, who also own more than half of the land in the contiguous territory and of real property therein representing more than half of the assessed value of all real property in the contiguous territory consent in writing to the annexation of their land in the territory and file a statement of their consent with the legislative body on or before the day:

(a) The public hearing is held under ORS 222.120, if the city legislative body dispenses with submitting the question to the electors of the city; or

(b) The city legislative body orders the annexation election in the city under ORS 222.111, if the city legislative body submits the question to the electors of the city.

(2) The legislative body of the city need not call or hold an election in any contiguous territory proposed to be annexed if a majority of the electors registered in the territory proposed to be annexed consent in writing to annexation and the owners of more than half of the land in that territory consent in writing to the annexation of their land and those owners and electors file a statement of their consent with the legislative body on or before the day:

(a) The public hearing is held under ORS 222.120, if the city legislative body dispenses with submitting the question to the electors of the city; or

(b) The city legislative body orders the annexation election in the city under ORS 222.111, if the city legislative body submits the question to the electors of the city.

(3) If the city legislative body has not dispensed with submitting the question to the electors of the city and a majority of the votes cast on the proposition within the city favor annexation, or if the city legislative body has previously dispensed with submitting the question to the electors of the city as provided in ORS 222.120, the legislative body, by resolution or ordinance, shall set the final boundaries of the area to be annexed by a legal description and proclaim the annexation.

(4) Real property that is publicly owned, is the right of way for a public utility, telecommunications [utility] carrier as defined in ORS 133.721 or railroad or is exempt from ad valorem taxation shall not be considered when determining the number of owners, the area of land or the assessed valuation required to grant consent to annexation under this section unless the owner of such property files a statement consenting to or opposing annexation with the legislative body of the city on or before a day described in subsection (1) of this section.

SECTION 13. ORS 401.710 is amended to read:

401.710. As used in ORS 307.215 and 401.710 to 401.790, unless the context requires otherwise:

(1) "Account" means the Emergency Communications Account.

(2) "Central office" means a utility [facility] that houses the switching and trunking equipment serving telephones in a defined area.

(3) "Department" means the Department of Revenue.

(4) "Emergency call" means a telephone request that results from a situation where prompt service is essential to preserve human life or property.

(5) "Enhanced 9-1-1 telephone service" means 9-1-1 telephone service consisting of a network, database and on-premises equipment that provides automatic display at the designated public safety answering point of the address and telephone number at the time of receiving an incoming 9-1-1 call.

(6) "Exchange access services" means:

(a) Telephone exchange access lines or channels that provide local access by a subscriber in this state to the local telecommunications network to effect the transfer of information; and

(b) Unless a separate tariff rate is charged therefor, any facility or service provided in connection with the services described in paragraph (a) of this subsection.

(7) "Governing body" means the board of county commissioners of a county, city council of a city, other governing body of a city or county, board of directors of a special district or a 9-1-1 jurisdiction.

(8) "Local government" has the meaning given that term in ORS 190.710.

(9) "Office" means the Office of Emergency Management of the Department of State Police.

(10) "Provider" means a utility or other vendor or supplier of telecommunications service or equipment that provides telecommunications with access to the 9-1-1 emergency reporting system through local exchange service, cellular service or other wired or wireless means.

(11) "Public or private safety agency" means any unit of state or local government, a special-purpose district or a private firm that provides or has authority to provide fire-fighting, police, ambulance or emergency medical services.

(12) "Public safety answering point" means a 24-hour communications facility established as an answering location for 9-1-1 calls originating within a given service area. A "primary public safety answering point" receives all calls directly from the public. A "secondary public safety answering point" only receives calls from a primary public safety answering point on a transfer or relay basis.

(13) "Subscriber" means a person who has telecommunication access to the 9-1-1 emergency reporting system through local exchange service, cellular service or other wired or wireless means.

(14) "TTY" means a telephone-typewriter used by a hearing or speech impaired person to communicate with another device or individual.

(15) "Utility" means a utility as defined in ORS 759.005, a "telecommunications carrier" as defined in ORS 133.721 [a telephone cooperative] or a municipality or any provider of exchange access services.

(16) "Vendor" means any corporation, company, individual or association, providing telephone customer premise equipment or equipment specific to the operation of enhanced 9-1-1 telephone service.

(17) "9-1-1 emergency reporting system" means a telephone service that provides the users of a public telephone system the ability to reach a primary public safety answering point by calling 9-1-1.

(18) "9-1-1 jurisdiction" means an entity created under ORS chapter 190, a county service district established under ORS chapter 451 to provide an emergency communications system, an emergency communications district created under ORS 401.807 to 401.857 or a group of public or private safety agencies who have agreed in writing to jointly plan the installation, maintenance, operation or improvement of a 9-1-1 emergency reporting system.

(19) "9-1-1 service area" means the geographical area that contains the entire central office serving area from which the primary public safety answering point will have the capability to answer calls placed to 9-1-1.

SECTION 14. ORS 401.765 is amended to read:

401.765. (1) Each telecommunications utility[, telephone cooperative] or municipality that provides exchange access service or radio communications service and that provides automatic telephone number identification to public safety answering points shall not block the number of the calling party from being forwarded on 9-1-1 calls.

(2) Automatic telephone number identifications received by public safety answering points are confidential and shall not be subject to public disclosure unless and until an official report is written by the public or private safety agency and that agency does not withhold the telephone number under ORS 192.410 to 192.505 or other state and federal laws. Nonpublished and nonlisted telephone numbers shall not be included in official reports of public safety answering points and public and private safety agencies or otherwise be subject to public disclosure without the permission of the subscriber.

(3) Any telecommunications utility that in good faith provides confidential or nonpublic information, including nonpublished and nonlisted subscriber information, to emergency services providers who are responding to emergency calls placed to a 9-1-1 or an enhanced 9-1-1 emergency reporting system shall not be subject to an action for civil damages as a result thereof. Nothing in this subsection shall compel any telecommunications utility to provide nonpublished and nonlisted subscriber information directly to emergency services providers or law enforcement agencies prior to placement of an emergency call to a 9-1-1 or an enhanced 9-1-1 emergency reporting system without process of law. Any subscriber information acquired by a 9-1-1 jurisdiction for the purpose of enhancing a 9-1-1 emergency reporting system shall not be subject to public disclosure or be used by other public agencies prior to receipt of a 9-1-1 call.

SECTION 15. ORS 411.070 is amended to read:

411.070. The Adult and Family Services Division shall by rule fix statewide uniform standards for all public assistance programs and effect uniform observance thereof throughout the state. In establishing statewide standards for public assistance, the Adult and Family Services Division, within the limits of available funds, shall take into consideration all basic requirements for a standard of living compatible with decency and health, including food, shelter, clothing, fuel, public utilities, telecommunications [utilities] service, medical care and other essential items and, upon the basis of investigations of the facts, shall provide budgetary guides for determining minimum costs of meeting such requirements. Family support services provided by the Adult and Family Services Division shall be delivered in accordance with the principles described in ORS 417.342 and 417.344.

SECTION 16. ORS 461.055 is amended to read:

461.055. (1) As used in this section:

(a) "Advanced digital communications" means equipment, facilities and capability to distribute digital communications signals for the transmission of voice, data, images and video over distance.

(b) "Commission" means the Oregon State Lottery Commission.

(c) "Telecommunications provider" means any person capable of providing advanced digital communications including, but not limited to, a telecommunications [utility] carrier as defined in [ORS 759.005,] ORS 133.721, a competitive telecommunications provider as defined in ORS 759.005, a cable television provider or an interstate telecommunications provider.

(2) Notwithstanding any other law, not later than October 1, 1998, the commission shall establish an emergency lottery computer database center at a location that is within 10 miles of the City of Burns.

(3) All telecommunications services for the emergency lottery computer database center shall be procured on public switched networks, insofar as the use of public switched networks does not compromise data security requirements.

(4) Notwithstanding ORS 279.005 to 279.111 and 279.310 to 279.321, the commission by contract shall acquire an advanced digital communications service for the emergency lottery computer database center from a telecommunications provider or a consortium of telecommunications providers capable of providing a network that meets the data security requirements of the commission. Contracts under this section shall provide that all responsibility for construction, installation, operation and maintenance of the network shall remain with the contracting telecommunications provider.

(5) A telecommunications provider providing contract services to the commission according to subsection (4) of this section may sell or otherwise transfer any excess capacity of the network, if the sale or transfer does not compromise data security requirements of the commission.

SECTION 17. ORS 479.540 is amended to read:

479.540. (1) Except as otherwise provided in this subsection, no person is required to obtain a license to make an electrical installation on property that is owned by the person or a member of the person's immediate family if the property is not intended for sale, exchange, lease or rent. The following apply to the exemption established in this subsection:

(a) The exemption established for a person under this subsection does not exempt the work performed by the person from having to comply with the requirements for such work under ORS chapter 455 or this chapter and rules adopted thereunder.

(b) If the property is a building used as a residence and is for rent, lease, sale or exchange, this subsection establishes an exemption for work on, alterations to or replacement of parts of electrical installations as necessary for maintenance of the existing electrical installations on that property, but does not exempt new electrical installations or substantial alterations to existing electrical installations on that property. As used in this paragraph, "new electrical installations or substantial alterations" does not include the replacement of an existing garbage disposal, dishwasher or electric hot water heater with a similar appliance of 30 amps or less, single phase, by a landlord, landlord's agent or the employee of the landlord or landlord's agent.

(2) No electrical contractor license is required in connection with an electrical installation:

(a) Of meters and similar devices for measuring electricity by a person principally engaged in the business of generating or selling electricity in connection with the construction or maintenance of electrical lines, wires or equipment.

(b) Of ignition or lighting systems for motor vehicles.

(c) To be made by a person on the person's property in connection with the person's business.

(d) To be made by a public utility, telecommunications [utility] carrier as defined in ORS 133.721 or municipality for generation, transmission or distribution of electricity on property which it owns or manages.

(3) No person whose sole business is generating or selling electricity in connection with the construction or maintenance of electrical lines, wires or equipment, is required to obtain a license to transform, transmit or distribute electricity from its source to the service head of the premises to be supplied thereby.

(4)(a) No person is required to obtain a license for the repair or replacement of light fixtures, light switches, lighting ballast, electrical outlets or smoke detectors in a building used for housing purposes that is owned, leased, managed or operated by a housing authority and the person doing the repair or replacement is a member of the housing authority's regular maintenance staff.

(b) No license is required for:

(A) Temporary demonstrations;

(B) A street lighting system located on a public street or in a right of way if the system is similar to a system provided by a public utility and the installation or maintenance, or both, is performed by a qualified employee of a licensed electrical contractor principally engaged in the business of installing and maintaining such systems; or

(C) An outdoor transmission or distribution system, whether overhead or underground, if the system is similar to a system provided by a public utility and the installation or maintenance, or both, is performed by a qualified employee of a licensed electrical contractor principally engaged in the business of installing and maintaining such systems.

(c) For the purposes of this subsection, "qualified employee" means an employee who has registered with or graduated from a State of Oregon or federally approved apprenticeship course designed for the work being performed. The supervising electrician signature required under ORS 479.560 (1)(b) does not apply to contractors working under this subsection.

(5) The provisions of ORS 479.510 to 479.945 do not apply:

(a) To electrical products owned by, supplied to or to be supplied to a public utility as defined in ORS 757.005 or telecommunications [utility] carrier as defined in [ORS 759.005] ORS 133.721;

(b) To electrical installations made by or for such a public utility or telecommunications [utility] carrier where the electrical installations are an integral part of the equipment or electrical products of such utility; or

(c) To any electrical generation plant owned or operated by a municipality to the same extent as a public utility or telecommunications [utility] carrier under paragraphs (a) and (b) of this subsection.

(6) No permit is required:

(a) For the repair or replacement of light fixtures, light switches, lighting ballast, electrical outlets or smoke detectors in a building used for housing purposes that is owned, leased, managed or operated by a housing authority; or

(b) For the repair, alteration or replacement of existing electrical products or electrical installations authorized by ORS 479.560 (3) at an industrial plant, a commercial office building, a building that is owned, leased, managed or operated by the state or a local government entity or other facilities designated by the Electrical and Elevator Board when the owner, operating manager or electrical contractor of the facility meets the provisions of ORS 479.630 (1) and (2) and:

(A) Obtains a master permit for inspection under ORS 479.560 (3); or

(B) Obtains a master individual inspection permit under ORS 479.565.

(7) In cases of emergency in industrial plants no permit is required in advance for electrical installation made by a person licensed as a general supervising electrician, a general journeyman electrician or an electrical apprentice under ORS 479.630 if an application accompanied by appropriate fee for a permit is submitted to the Department of Consumer and Business Services within five days after the commencement of such electrical work.

(8) No person is required to obtain a license or permit to set in place and connect a certified electrical product as long as the work performed is not an electrical installation as defined in ORS 479.530.

(9) The provisions of ORS 479.510 to 479.945 do not apply to electrical installations involving:

(a) Communication and signal systems of railroad companies.

(b) Telephone terminal equipment and communications systems including all grandfathered or registered telephone terminal equipment and communications systems identified in the Federal Communications Commission rules and regulations, Volume X, part 68, and all terminal equipment and communications systems that are utilized in conjunction with private line communications services.

(c) Remote and permanent broadcast systems of radio and television stations licensed by the Federal Communications Commission if the systems are not part of the building's permanent wiring.

(10)(a) The board may grant partial or complete exemptions by rule for any electrical product from any of the provisions of ORS 455.610 to 455.630 or 479.510 to 479.945 if the board determines that the electrical product does not present a danger to the health and safety of the people of this state.

(b) If the board grants an exemption pursuant to subsection (1) of this section, the board may determine that the product may be installed by a person not licensed under ORS 479.510 to 479.945.

(11) ORS 479.760 does not apply to products described in this subsection that comply with the minimum electrical installation safety code. This subsection does not exempt any products used in locations determined to be hazardous in the electrical code of this state. The following apply to this subsection:

(a) Except as provided in paragraph (b) of this subsection, the exemption under this subsection applies to:

(A) Industrial electrical equipment.

(B) The rotating equipment portion of power generation equipment.

(C) Testing equipment used in a laboratory or hospital.

(D) Commercial electrical air conditioning equipment.

(E) Prefabricated work performed by an electrical contractor with licensed electrical personnel in the contractor's place of business for assembly on the job site if the work is composed of parts that are certified electrical products.

(b) Notwithstanding paragraph (a) of this subsection, the board may require any of the products described in paragraph (a) of this subsection to be subject to the certification requirements under ORS 479.760 if the board determines that the product or class of products has presented a fire or life safety hazard in use. A determination under this paragraph shall be effective as to any such product or class of products sold or offered for sale after the date of the determination becomes final. The board may reinstate any exemption removed under this paragraph if the board determines that the reasons for the removal of the exemption have been corrected.

(12) ORS 479.760 does not apply to electrical equipment that has been in use for one year or more and that is offered for sale.

(13) A person who holds a limited maintenance specialty contractor license or a limited pump installation specialty contractor license issued under ORS 479.510 to 479.945 or a person who is the employee of such license holder and who is listed with the board as an employee is not required to have a journeyman license or supervising electrician's license to perform work authorized under the person's license.

(14) No person is required to obtain a permit for work on, alterations to or replacement of parts of electrical installations as necessary for maintenance of existing electrical installations on residential property owned by the person or by a member of the person's immediate family. This subsection does not establish an exemption for new electrical installations or substantial alterations to existing electrical installations.

(15) No permit is required for those minor electrical installations for which the board has authorized an installation label.

(16) A residential home, as defined in ORS 443.580, and an adult foster home, as defined in ORS 443.705, shall not be considered to be a multifamily dwelling and only electrical installation standards and safety requirements applicable to single family dwellings apply to such homes.

(17) The permit requirements of ORS 479.550 and the license requirements of ORS 479.620 do not apply to cable television installations.

(18) The provisions of any electrical products code or rule adopted pursuant to ORS 479.510 to 479.945 apply to cable and such products installed as part of a cable television installation.

SECTION 18. ORS 552.310 is amended to read:

552.310. The right to condemn property, pursuant to ORS 552.305 (4), shall include property already devoted to public use, including city, state and county property, which is less necessary than the use for which it is required by the district. In the acquisition of property or rights by condemnation, the board shall proceed in the name of the district under the provisions of the laws of Oregon. However, the right of condemnation may not be exercised against any water right; against land or other property owned by a city supplying domestic water; a public utility as defined by ORS 757.005; against a telecommunications [utility] carrier as defined in [ORS 759.005] ORS 133.721; against lands of a domestic water supply district organized under ORS chapter 264, an irrigation district organized under ORS chapter 545, a drainage district organized under ORS chapter 547, a diking district organized under ORS chapter 551 or a corporation for the use and control of water organized under ORS chapter 554; or against property of the State of Oregon for highway purposes.

SECTION 19. ORS 815.232 is amended to read:

815.232. (1) A person commits the offense of causing unreasonable sound amplification from a vehicle if the person operates, or permits the operation of, any sound amplification system which is plainly audible outside of a vehicle from 50 or more feet when the vehicle is on a public highway or on premises open to the public, unless that system is being operated to request assistance or warn of a hazardous situation.

(2) Subsection (1) of this section does not apply to:

(a) Vehicles being operated outside of an urban growth boundary;

(b) Emergency vehicles as defined in ORS 801.260;

(c) Vehicles operated by utilities defined under ORS 757.005, 758.505 or 759.005, or telecommunications carriers as defined in ORS 133.721;

(d) Sound systems of vehicles used for advertising, or in parades, political or other special events, except that the use of sound systems on those vehicles may be prohibited by a local authority by ordinance or resolution;

(e) Audio alarm systems installed in vehicles; or

(f) Federal Communications Commission licensed two-way radio communications systems.

(3) As used in subsection (1) of this section, "plainly audible" means any sound for which the information content of that sound is unambiguously communicated to the listener including, but not limited to, understandable spoken speech, comprehension of whether a voice is raised or normal or comprehensible musical rhythms or vocal sounds.

(4) The offense described in this section, causing unreasonable sound amplification from a vehicle, is a Class D traffic infraction.

SECTION 20. ORS 836.050 is amended to read:

836.050. (1) No operating property of any public utility, as defined in ORS 757.005, or any telecommunications [utility, as defined in ORS 759.005] carrier as defined in ORS 133.721, shall be condemned pursuant to ORS 836.025 and 836.045 unless the Public Utility Commission, after notice and hearing in accordance with the rules of procedure of the commission, has found that public convenience and necessity require such condemnation. All administrative expenses incurred in any such hearing shall be paid by the party not prevailing therein.

(2) No operating property of any railroad, as defined in ORS 824.200, shall be condemned pursuant to ORS 836.025 and 836.045 unless the Department of Transportation, after notice and hearing, has found that public convenience and necessity require such condemnation. All administrative expenses incurred in any such hearing shall be paid by the party not prevailing therein.

SECTION 21. ORS 221.417 is repealed.

SECTION 22. Sections 23 to 38 of this 1999 Act are added to and made a part of ORS chapter 759.

SECTION 23. As used in sections 23 to 38 of this 1999 Act:

(1) "Basic telephone service" means local exchange telecommunications service defined as basic by rule of the Public Utility Commission.

(2) "Retail telecommunications service" means a telecommunications service provided for a fee to customers. "Retail telecommunications service" does not include a service provided by one telecommunications carrier to another telecommunications carrier, unless the carrier receiving the service is the end user of the service.

(3) "Telecommunications carrier" means any provider of retail telecommunications services, except a call aggregator as defined in ORS 759.690.

SECTION 24. (1) A telecommunications carrier may elect to be subject to this section and section 25 of this 1999 Act. The telecommunications carrier shall notify, in writing, the Public Utility Commission of its election. Such election shall be effective 30 days after the written notification is received by the Public Utility Commission. A telecommunications carrier that elects to be subject to this section and section 25 of this 1999 Act shall be subject to the infrastructure investment and price regulation requirements of this section and section 25 of this 1999 Act and shall not be subject to any other regulation based on earnings, rates or rate of return.

(2) A telecommunications carrier that elects to be subject to this section and section 25 of this 1999 Act shall establish in its accounts a Telecommunications Infrastructure Account. The telecommunications carrier shall commit to its Telecommunications Infrastructure Account over a four-year period amounts totaling 20 percent of the telecommunications carrier's gross regulated intrastate revenue for the calendar year immediately prior to the year the telecommunications carrier elects to be subject to this section and section 25 of this 1999 Act. Of the total committed amount, 30 percent shall be credited to and made available for the purposes of the electing carrier's account on the date the telecommunications carrier's election becomes effective. An electing telecommunications carrier shall credit an equal amount on the same date in the next following year. The electing carrier shall credit to its Telecommunications Infrastructure Account an amount equal to 20 percent of the total committed amount on the same date in each of the next following two years.

(3)(a) A telecommunications carrier that elects to be subject to this section and section 25 of this 1999 Act shall expend the moneys in the telecommunications carrier's Telecommunications Infrastructure Account on a plan or plans approved by the Oregon Economic Development Commission under section 31 of this 1999 Act. Subject to paragraphs (c) and (d) of this subsection, the total amount of capital and other expenses associated with completing the projects shall equal the total amount of moneys available in the account.

(b) Moneys in the account shall be used primarily to ensure that rural and urban Oregonians have improved access to telecommunications technology and services. Expenditures from the account shall be used for investment in telecommunications infrastructure and deployment of new and advanced telecommunications services.

(c)(A) Within 120 days following the effective date of a telecommunications carrier's election to be regulated under this section and section 25 of this 1999 Act, but not later than January 1 of the year following the effective date of a telecommunications carrier's election, and on the same date in each of the next following three years, a telecommunications carrier serving less than one million access lines in Oregon shall transfer 40 percent of the moneys most recently credited to its Telecommunications Infrastructure Account to the Connecting Oregon Communities Fund established under section 33 of this 1999 Act.

(B) Within 120 days following the effective date of a telecommunications carrier's election to be regulated under this section and section 25 of this 1999 Act, but not later than January 1 of the year following the effective date of a telecommunications carrier's election, and on the same date in the next following year, a telecommunications carrier serving one million or more access lines in Oregon shall transfer 70 percent of the moneys most recently credited to its Telecommunications Infrastructure Account to the Connecting Oregon Communities Fund established under section 33 of this 1999 Act.

(d) Notwithstanding ORS 285A.075 (2), if the Oregon Economic Development Commission determines, following notice and a public hearing, that the telecommunications carrier is not complying with plans or plan modifications approved under section 31 of this 1999 Act, following notice to the telecommunications carrier and reasonable opportunity to cure any noncompliance, the Oregon Economic Development Commission may require the telecommunications carrier to transfer any or all moneys remaining in the carrier's Telecommunications Infrastructure Account, and any future amounts credited to the account, to the Connecting Oregon Communities Fund established under section 33 of this 1999 Act.

(4) Nothing in this section affects the authority of a city or municipality to manage the public rights of way or to require fair and reasonable compensation from a telecommunications carrier, on a competitively neutral and nondiscriminatory basis, under ORS 221.420, 221.450, 221.510 and 221.515.

SECTION 25. (1) It is the intent of the Legislative Assembly that:

(a) The State of Oregon cease regulation of telecommunications carriers on a rate of return basis;

(b) Telecommunications carriers subject to rate of return regulation have the ability to opt out of rate of return regulation;

(c) A telecommunications carrier that opts out of rate of return regulation under this section and section 24 of this 1999 Act shall be subject to price cap regulation and the carrier under price cap regulation shall continue to meet service quality requirements; and

(d) Telecommunications carriers that opt out of rate of return regulation under this section and section 24 of this 1999 Act shall make payments to the state to support the use of advanced telecommunications services and to support deployment of advanced telecommunications services.

(2) A telecommunications carrier that elects to be subject to this section and section 24 of this 1999 Act shall be subject to price regulation as provided in this section and shall not be subject to any other retail rate regulation, including but not limited to any form of earnings-based, rate-based or rate of return regulation.

(3) The price a telecommunications utility that elects to be subject to this section and section 24 of this 1999 Act may charge for basic telephone service shall be established by the Public Utility Commission under section 28 of this 1999 Act. Subject to section 27 of this 1999 Act, the regular tariff rate of intrastate switched access and retail telecommunications services regulated by the commission, other than basic telephone service, in effect on the date the carrier elects to be subject to this section and section 24 of this 1999 Act shall be the maximum price the telecommunications carrier may charge for that service.

(4) A telecommunications carrier that elects to be subject to this section and section 24 of this 1999 Act may adjust the price for a regulated retail telecommunications service between the maximum price established under this section and a price floor equal to the sum of the total service long run incremental cost of providing the service for the nonessential functions of the service and the price that is charged to other telecommunications carriers for the essential functions. Basic telephone service shall not be subject to a price floor.

(5) The price for a new regulated retail telecommunications service introduced by a telecommunications carrier within four years after the date the carrier elects to be subject to this section and section 24 of this 1999 Act shall be subject to a price floor test by the commission to ensure that the service is not priced below the sum of the total service long run incremental cost of providing the service for the nonessential functions of the service and the price that is charged to other telecommunications carriers for the essential functions. Beginning on the date four years after the effective date of this 1999 Act, the price of a new telecommunications service shall be subject to a price floor test by the commission to ensure that the service is not priced below the total service long run incremental cost of providing the service, without regard to whether the service is considered essential or nonessential.

(6) A telecommunications carrier that elects to be subject to this section and section 24 of this 1999 Act may package and offer any of its retail telecommunications services with any other service at any price, provided the following conditions apply:

(a) Any regulated telecommunications service may be purchased separately at or below the maximum price.

(b) The price of the package is not less than the sum of the price floors of each regulated retail telecommunications service included in the package.

(c) The price of a package that is comprised entirely of regulated retail telecommunications services does not exceed the sum of the maximum prices for each of the services.

(d) The price of a package comprised of regulated and unregulated retail telecommunications services does not exceed the sum of the maximum prices established under this section for regulated services and the retail price charged by the carrier for the individual unregulated services in the package. A telecommunications carrier subject to regulation under this section shall provide notice to the commission within 30 days of a change in the price of an unregulated telecommunications service contained in the package.

(7) Nothing in this section or section 24 of this 1999 Act is intended to limit the ability of a telecommunications carrier to seek deregulation of telecommunications services under ORS 759.030.

(8)(a) Notice of a price change authorized under subsection (4) of this section, of the introduction of a new regulated telecommunications service or of the packaging of services, must be given to the commission within 30 days following the effective date of the price change, new service or packaged service. Notice of a new regulated telecommunications service shall indicate the retail price charged by the carrier for the service.

(b) The commission may investigate any price change authorized under subsection (4) of this section, the price of a new regulated telecommunications service or the price of a package of services to determine that the price complies with the provisions of this section and any other applicable law. If the commission determines that the price of the service or package of services does not comply with the provisions of this section or other applicable law, the commission may order the telecommunications carrier to take such action as the commission determines necessary to bring the price into compliance with this section or other applicable law.

(9) Nothing in this section affects the authority of a city or municipality to manage the public rights of way or to require fair and reasonable compensation from a telecommunications carrier, on a competitively neutral and nondiscriminatory basis, under ORS 221.420, 221.450, 221.510 and 221.515.

SECTION 26. Nothing in sections 23 to 38 of this 1999 Act is intended to affect, alter or in any way modify wholesale transactions regulated by the federal Telecommunications Act of 1996 (Public Law 104-104) as in effect on the effective date of this 1999 Act and regulations adopted thereunder.

SECTION 27. (1) In a rate proceeding brought by a telecommunications carrier that elects to be subject to sections 24 and 25 of this 1999 Act, or by the Public Utility Commission against an electing telecommunications carrier, prior to January 1, 1999, that is on appeal on the effective date of this 1999 Act, a final rate for a telecommunications service implemented as a result of the final judgment and order or negotiated settlement shall become the maximum rate for purposes of section 25 of this 1999 Act.

(2) A rate proceeding brought by or against an electing telecommunications carrier, after January 1, 1999, that is pending on the effective date of the carrier's election to be subject to sections 24 and 25 of this 1999 Act, shall be dismissed by the commission or by the court if on appeal, provided the carrier elects to be subject to regulation under sections 24 and 25 of this 1999 Act within the later of:

(a) Ninety days from the commencement of the proceeding; or

(b) Ninety days from the operative date of sections 24 and 25 of this 1999 Act.

(3) Notwithstanding subsection (2) of this section, the parties to a rate proceeding brought by or against an electing telecommunications carrier, after January 1, 1999, that is pending on the effective date of the carrier's election to be subject to sections 24 and 25 of this 1999 Act, may agree to continue the proceeding.

SECTION 28. (1) Within 12 months following the effective date of this 1999 Act, the Public Utility Commission shall establish and implement a competitively neutral and nondiscriminatory universal service fund to ensure basic telephone service is available at a reasonable and affordable rate. The universal service fund shall conform to section 254 of the federal Telecommunications Act of 1996 (Public Law 104-104). The commission may delay implementation for rural telecommunications carriers, as defined in the federal Act, for up to six months after the date the Federal Communications Commission adopts a cost methodology for rural carriers.

(2)(a) The Public Utility Commission shall establish the price a telecommunications utility may charge its customers for basic telephone service. The commission in its discretion shall periodically review and evaluate the status of telecommunications services in the state and designate the services included in basic telephone service. The commission in its discretion shall periodically review and adjust as necessary the price a telecommunications utility may charge for basic telephone service.

(b) The provisions of this subsection do not apply to the basic telephone service provided by a telecommunications utility described in ORS 759.040.

(3)(a) The Public Utility Commission shall establish a benchmark for basic telephone service as necessary for the administration and distribution of the universal service fund. The universal service fund shall provide explicit support to an eligible telecommunications carrier that is equal to the difference between the cost of providing basic telephone service and the benchmark, less any explicit compensation received by the carrier from federal sources specifically targeted to recovery of local loop costs and less any explicit support received by the carrier from a federal universal service program.

(b) The commission in its discretion shall periodically review the benchmark and adjust it as necessary to reflect:

(A) Changes in competition in the telecommunications industry;

(B) Changes in federal universal service support; and

(C) Other relevant factors as determined by the commission.

(c) Except for a telecommunications utility described in ORS 759.040, the commission shall seek to limit the difference between the price a telecommunications utility may charge for basic telephone service and the benchmark.

(4) Except as provided in subsections (6) and (7) of this section, there is imposed on the sale of all retail telecommunications services sold in this state a universal service surcharge. The surcharge shall be established by the commission as a uniform percentage of the sale of retail telecommunications services in an amount sufficient to support the purpose of the universal service fund. The surcharge may be shown as a separate line item by all telecommunications carriers using language prescribed by the commission. A telecommunications carrier shall deposit amounts collected into the universal service fund according to a schedule adopted by the commission.

(5) The commission is authorized to establish a universal service fund, separate and distinct from the General Fund. The fund shall consist of all universal service surcharge moneys collected by telecommunications carriers and paid into the fund. The fund shall be used only for the purpose described in this section, and for payment of expenses incurred by the commission or a third party appointed by the commission to administer this section. All moneys in the fund are continuously appropriated to the commission to carry out the provisions of this section. Interest on moneys deposited in the fund shall accrue to the fund.

(6) For purposes of this section, "retail telecommunications service" does not include radio communications service, radio paging service, commercial mobile radio service, personal communications service or cellular communications service.

(7)(a) Notwithstanding subsection (6) of this section, a person who primarily provides radio communications service, radio paging service, commercial mobile radio service, personal communications service or cellular communications service may request designation as an eligible telecommunications carrier by the Public Utility Commission for purposes of participation in the universal service fund.

(b) In the event a person who primarily provides radio communications service, radio paging service, commercial mobile radio service, personal communications service or cellular communications service seeks designation as an eligible telecommunications carrier for purposes of participation in the universal service fund, the person shall provide written notice to the Public Utility Commission requesting designation as an eligible telecommunications carrier within 60 days of the date the commission establishes the fund. Upon receiving notice, the commission may designate the person as an eligible telecommunications carrier for purposes of participation in the fund.

(c) A person who primarily provides radio communications service, radio paging service, commercial mobile radio service, personal communications service or cellular communications service who fails to request designation as an eligible telecommunications carrier within 60 days of the date the universal service fund is established by the Public Utility Commission may not be designated as an eligible telecommunications carrier unless the person has contributed to the fund for at least one year immediately prior to requesting designation.

SECTION 29. (1) It is the intent of the Legislative Assembly that every telecommunications carrier and those telecommunications utilities and competitive telecommunications providers that provide wholesale services meet minimum service quality standards on a nondiscriminatory basis.

(2) The Public Utility Commission shall determine minimum service quality standards that relate to the provision of retail telecommunications services to ensure safe and adequate service. Except as provided in subsection (8) of this section, minimum service quality standards adopted under this section shall apply to all telecommunications carriers. The commission by rule shall review and revise the minimum service quality standards as necessary to ensure safe and adequate retail telecommunications services.

(3) The minimum service quality standards for providing retail telecommunications services adopted by the commission shall relate directly to specific customer impact indices including but not limited to held orders, trouble reports, repair intervals and carrier inquiry response times. In adopting minimum service quality standards, the commission shall, for each standard adopted, consider the following:

(a) General industry practice and achievement;

(b) National data for similar standards;

(c) Normal operating conditions;

(d) The historic purpose for which the telecommunications network was constructed;

(e) Technological improvements and trends; and

(f) Other factors as determined by the commission.

(4) Consistent with the federal Telecommunications Act of 1996 (Public Law 104-104), as amended and in effect on the effective date of this 1999 Act, the commission may establish minimum service quality standards related to providing wholesale, interconnection, transport and termination services provided by a telecommunications carrier and those telecommunications utilities and competitive telecommunications providers that provide wholesale telecommunications services.

(5) The commission shall require a telecommunications carrier, telecommunications utility or competitive telecommunications provider that is not meeting the minimum service quality standards to submit a plan for improving performance to meet the standards. The commission shall review and approve or disapprove the plan. If the carrier, utility or provider does not meet the goals of its improvement plan within six months or if the plan is disapproved by the commission, penalties may be assessed against the carrier, utility or provider on the basis of the carrier's, utility's or provider's service quality measured against the minimum service quality standards and, if assessed, shall be assessed according to the provisions of ORS 759.990.

(6) Prior to commencing an action under this section and ORS 759.990, the commission shall allow a telecommunications carrier, telecommunications utility or competitive telecommunications provider an opportunity to demonstrate that a violation of a minimum service quality standard is the result of the failure of a person providing telecommunications interconnection service to meet the person's interconnection obligations.

(7) Total annual penalties imposed on a telecommunications utility under this section shall not exceed two percent of the utility's gross intrastate revenue from the sale of telecommunications services for the calendar year preceding the year in which the penalties are assessed. Total annual penalties imposed on a competitive telecommunications provider under this section shall not exceed two percent of the provider's gross revenue from the sale of telecommunications services in this state for the calendar year preceding the year in which the penalties are imposed.

(8) The provisions of this section do not apply to:

(a) Radio communications service, radio paging service, commercial mobile radio service, personal communications service or cellular communications service; or

(b) A cooperative corporation organized under ORS chapter 62 that provides telecommunications services.

SECTION 30. (1) In addition to the minimum service quality standards established by the Public Utility Commission under section 29 of this 1999 Act, a telecommunications carrier that elects to be subject to sections 24 and 25 of this 1999 Act shall be subject to the retail telecommunications service quality standards and associated penalties for noncompliance established in this section. Retail telecommunications service quality standards and associated penalties are as follows:

(a)(A) Held orders. A customer request for access line telephone service shall be considered a held order if the service is not installed due to facility reasons within five business days of the date the service is scheduled to be installed, unless a different date is agreed to by the customer and the telecommunications carrier. The average monthly number of held orders shall not exceed 6.25 per 1,000 inward orders and shall be calculated as a monthly average for each quarterly period. A penalty of $20,000 per held order per quarterly period in excess of the standard may be assessed.

(B) As used in this paragraph, "access line" means a dial tone line that provides basic exchange services extending from the carrier's switching equipment to a point of termination at the premises of the carrier's end use customer.

(b) Held orders over 30 days. The number of held orders for primary basic telephone service held for facility reasons in excess of 30 business days shall not exceed 20 percent of the total held order standard for each quarterly period. A penalty of $10,000 per held order in excess of the standard may be assessed.

(c) Trouble report rate. A wire center shall not have more than four trouble reports per 100 access lines per month calculated as a monthly average for each quarterly period, excluding those trouble reports beyond the control of the telecommunications carrier. A penalty of $25,000 per wire center may be assessed for each month of noncompliance with this standard.

(d) Network blockage. Of all properly dialed calls, 98 percent shall not experience blockage during any normal busy hour, excluding blockage that is beyond the control of the telecommunications carrier. A penalty of $10,000 per wire center may be assessed for each month of noncompliance with this standard.

(e) Trouble reports cleared. Of all trouble reports, 90 percent shall be cleared within 48 hours. A penalty of $15,000 per month may be assessed for each month of noncompliance with this standard, except that a penalty shall not be assessed if the telecommunications carrier has met this standard on an overall basis for the annual period.

(f) Repair center access. Of calls to a telecommunications carrier's repair center or centers, 80 percent shall be answered in 20 seconds or less. A penalty of $15,000 per month may be assessed for each month of noncompliance with this standard.

(g) Sales office access. Of calls to a telecommunications carrier's sales office or offices, 75 percent shall be answered in 20 seconds or less. A penalty of $15,000 per month may be assessed for each month of noncompliance with this standard.

(2) The service quality standards established in this section and section 29 of this 1999 Act apply to normal operating conditions and do not establish a level of performance to be achieved during periods of emergency, catastrophe, natural disaster, severe storm or other events affecting large numbers of telecommunications customers. The service quality standards shall not apply to extraordinary or abnormal conditions of operation such as those conditions resulting from work stoppage or slowdown, civil unrest or other events for which the telecommunications carrier reasonably may not have been expected to accommodate. To the extent such conditions affect the performance of a telecommunications carrier, it shall be the responsibility of the telecommunications carrier to separately document the duration and magnitude of each occurrence.

(3) A telecommunications carrier subject to this section shall report to the commission quarterly the carrier's performance relative to each of the minimum service quality standards.

(4) Penalties for a violation of the service quality standards established under this section shall be imposed by order following complaint as provided under ORS 756.500 to 756.610. Any complaint filed under this section shall be filed within 90 days of each anniversary of the date the telecommunications carrier became subject to regulation under sections 24 and 25 of this 1999 Act. Penalties imposed under this section shall be:

(a) Paid in the form of bill credits to the telecommunications carrier's customers in a manner approved by the commission; or

(b) Directed by the commission to targeted investments by the telecommunications carrier to address specific issues of service quality.

(5)(a) Total combined annual penalties imposed on a telecommunications utility under this section and sections 29 and 38 of this 1999 Act shall not exceed two percent of the utility's gross intrastate revenue from the sale of telecommunications services in the calendar year preceding the year in which the penalties are assessed.

(b) Penalties imposed under section 29 of this 1999 Act shall be reduced by an amount equal to the penalty amount incurred by a telecommunications utility under this section, provided the penalties are imposed or incurred for violations resulting from the same incident.

SECTION 31. (1)(a) Notwithstanding ORS 285A.075 (2), the Oregon Economic Development Commission shall approve plans and plan modifications for projects funded by a telecommunications carrier's Telecommunications Infrastructure Account established under section 24 of this 1999 Act. Projects funded from a telecommunications carrier's Telecommunications Infrastructure Account shall be completed by the carrier and shall be substantially for the benefit of the carrier's customers. Plans approved by the commission must be consistent with the purpose of the fund as described in section 24 of this 1999 Act. The commission shall give priority to projects that provide increased bandwidth between communities, route diversity and access to advanced telecommunications services in an expedited manner. The commission shall seek to ensure that an approved project is the most technically appropriate means of addressing the circumstances presented in a project plan. The commission shall review recommendations and analysis from the Connecting Oregon Communities Advisory Board established in subsection (2) of this section prior to approving a plan. Project plans may be submitted by local communities including but not limited to local governments, community institutions, citizen groups, public and private educational institutions and business groups.

(b) Under the policies and guidance of the commission, the Economic Development Department shall adopt rules for the submission of project plans by telecommunications carriers and other persons, including criteria for approval of such plans. The rules shall include criteria to determine if the telecommunications carrier reasonably should be expected to make the investment based on an economic analysis of the project. Projects that are determined to meet the criteria but are not economically self-supporting or would not be undertaken in the time frame proposed shall be given priority over similar projects that would be economically self-supporting or likely would be completed in the time frame proposed. The rules shall provide for review of the economic benefits of the proposed plan to the affected community and the potential for the proposed plan to leverage other funding sources including but not limited to federal, state and private sources.

(c) The commission also shall approve expenditures from the Public Access Account of the Connecting Oregon Communities Fund established in section 33 (4) of this 1999 Act.

(2) There is established within the Economic Development Department the Connecting Oregon Communities Advisory Board consisting of five members appointed by the commission. The commission shall seek advice from the Governor prior to making an appointment to the advisory board.

(3) There shall be one member of the advisory board from each of the following areas:

(a) Eastern Oregon, including Hood River County;

(b) Central Oregon;

(c) Southern Oregon;

(d) Coastal Oregon; and

(e) The Willamette Valley.

(4) Employees of the Public Utility Commission, employees of state or local government who are responsible for purchasing telecommunications services or equipment and employees of a telecommunications carrier may not be appointed to the advisory board.

(5) The advisory board shall select one of its members as chairperson and another of its members as vice chairperson, for such terms and with duties and powers necessary for the performance of the functions of those offices as the board determines.

(6) The purpose of the advisory board is to review and make recommendations to the Oregon Economic Development Commission for approval of and modifications to projects funded by a telecommunications carrier's Telecommunications Infrastructure Account under this section and section 24 of this 1999 Act. The advisory board shall seek advice and comment on plans submitted by a telecommunications carrier from affected local communities including but not limited to local governments, citizens and businesses. The advisory board also shall seek advice and comment from state and federal agencies when appropriate to ensure that investments will maximize statewide public benefits and are consistent with the needs and desires of the local communities. The advisory board shall consider the needs of and impact on education, health care, economic development and the delivery of state and local governmental services when evaluating a plan.

(7) The advisory board also shall review proposals submitted to the commission under section 33 (5) of this 1999 Act and make recommendations to the commission regarding approval, modification or denial of the proposals.

(8) The advisory board shall make an annual report to the Joint Legislative Committee on Information Management and Technology on the plans and activities funded under sections 24 and 33 (5) of this 1999 Act.

(9)(a) Reasonable expenses incurred by the members of the advisory board in the performance of their duties, costs of the Economic Development Department directly related to providing staff to the advisory board and costs to the department for providing technical assistance to local communities shall be paid out of the Telecommunications Infrastructure Accounts created under section 24 of this 1999 Act.

(b) Following the transfer of funds required under section 24 (2) and (3) of this 1999 Act, a telecommunications carrier that elects to be subject to regulation under sections 24 and 25 of this 1999 Act shall transfer from the remaining funds in its Telecommunications Infrastructure Account the following amounts to the Economic Development Department to be used for the payment of expenses described in paragraph (a) of this subsection:

(A) $575,000 in 2000;

(B) $325,000 in 2001;

(C) $325,000 in 2002; and

(D) $325,000 in 2003.

(c) If more than one telecommunications carrier elects to be subject to regulation under sections 24 and 25 of this 1999 Act, the funding requirements described in paragraph (b) of this subsection shall be distributed pro rata among the electing carriers.

SECTION 32. (1) The Economic Development Department, in collaboration with affected telecommunications carriers, the Connecting Oregon Communities Advisory Board, representatives of local communities and other members of the public interested in improved telecommunications services, shall conduct an assessment of telecommunications infrastructure and community telecommunications needs in local communities and across the various regions of this state. The assessment shall include:

(a) The type of telecommunications services and technology, including infrastructure, already deployed within communities and regions;

(b) The type of telecommunications technology and services desired by communities within regions;

(c) The competitiveness of the local telecommunications market, including a list of all telecommunications carriers and Internet service providers;

(d) The economic significance of desired telecommunications investments;

(e) Community and regional priority lists for telecommunications infrastructure and service investments;

(f) The ability of qualified public and nonprofit users within the community or region to aggregate demand for telecommunications services and the benefits of such aggregation;

(g) The estimated costs and implementation schedule of desired or proposed telecommunications investments;

(h) An analysis of state, federal, nonprofit and private sources of funding for the proposed improvements;

(i) The ability of the investment to be self-supporting; and

(j) The ability of a community or region to make the investments necessary to connect to the Oregon Enterprise Network, and the local and statewide benefits of such investments.

(2)(a) To the maximum extent practicable, the assessment shall recognize and include existing state, regional and local plans and information. The department may use its own staff or may contract with third parties to conduct the assessment.

(b) A copy of the assessment shall be submitted to the Oregon Economic Development Commission and to the Joint Legislative Committee on Information Management and Technology. The commission shall consider the information contained in the report when adopting or amending the rules required under section 31 (1) of this 1999 Act.

(3) The commission shall not approve plans under section 31 (1) of this 1999 Act until the commission has received the assessment required under this section. The department shall report to the Joint Legislative Committee on Information Management and Technology on implementation of sections 31 to 37 of this 1999 Act prior to the approval of project plans under section 31 (1) of this 1999 Act.

SECTION 32a. The Economic Development Department may request approval from the Emergency Board for the transfer of additional funds from a telecommunications carrier's Telecommunications Infrastructure Account created under section 24 of this 1999 Act for the purpose of providing technical assistance to the department and the Oregon Economic Development Commission in evaluating project plans submitted under section 31 of this 1999 Act. If the request is approved, the commission by order may direct the transfer of funds from a telecommunications carrier's Telecommunications Infrastructure Account to the Economic Development Department. The department may not request and the Emergency Board shall not approve a request or requests in excess of $100,000 per year.

SECTION 33. (1) There is established in the State Treasury, separate and distinct from the General Fund, the Connecting Oregon Communities Fund. Moneys in the fund shall consist of amounts deposited in the fund under section 24 of this 1999 Act. Interest earned on moneys in the fund shall accrue to the fund. Moneys in the fund may be invested as provided in ORS 293.701 to 293.820. Moneys in the fund shall be used to provide access to advanced telecommunications technology in elementary schools and high schools, colleges and universities, community colleges, public television corporations, rural health care providers, public libraries and other eligible persons.

(2) Two dedicated accounts shall be established within the Connecting Oregon Communities Fund for purposes of supporting education and public access to advanced telecommunications services. The first $25 million of the moneys deposited in the Connecting Oregon Communities Fund in both 2000 and 2001 shall be appropriated to the School Technology Account established under subsection (3) of this section. Any additional moneys available in the fund shall be appropriated to the Public Access Account established under subsection (4) of this section.

(3) There is established the School Technology Account within the Connecting Oregon Communities Fund. The purpose of the School Technology Account is to improve access to advanced telecommunications services for students attending public school in kindergarten through grade 12. Moneys in the account shall be expended as provided in section 34 of this 1999 Act.

(4)(a) There is established the Public Access Account within the Connecting Oregon Communities Fund. The purpose of the Public Access Account is to improve access to advanced telecommunications services for community colleges, universities, public libraries and rural health care providers.

(b) If funding has not been provided from other sources, the first $3 million available in the Public Access Account shall be transferred to the Department of Higher Education for the purpose of funding the Oregon Wide Area Network project to provide and expand Internet access for the State System of Higher Education. The Department of Higher Education shall complete an audit of bandwidth utilization and report to the Joint Legislative Committee on Information Management and Technology during the Seventy-first Legislative Assembly in the manner provided in ORS 192.245.

(c) Following the transfer of funds described in paragraph (b) of this subsection, the next $1 million available in the Public Access Account shall be transferred to the Department of Higher Education for Oregon State University for the purpose of providing virtual access to persons with disabilities.

(d) Following the transfer of funds as described in paragraphs (b) and (c) of this subsection, the next $2 million available in the Public Access Account shall be transferred to the Office of Community College Services for distribution to community colleges for the purpose of developing connectivity and distance education programs.

(e) Following the transfer of funds described in paragraphs (b) to (d) of this subsection, the next $4 million available in the Public Access Account shall be transferred to the Department of Higher Education for video transport and network management services for the Oregon university system.

(f) Following the transfer of funds described in paragraphs (b) to (e) of this subsection, the next $5.5 million available in the Public Access Account shall be transferred to the Oregon Public Broadcasting Corporation for the purpose of digitizing the state television network, using the Oregon Enterprise Network when possible.

(g) Following the transfer of funds described in paragraphs (b) to (f) of this subsection, the next $500,000 available in the Public Access Account shall be transferred to the Southern Oregon Public Television Corporation for the purpose of digitizing the state television network, using the Oregon Enterprise Network when possible.

(h) Following the transfer of funds described in paragraphs (b) to (g) of this subsection, a state institution of higher education, including the Oregon Health Sciences University, may apply for one-time matching funds up to $1 million from the Public Access Account to endow a telecommunications chair for the purpose of increasing research and development of advanced telecommunications services applications. Only one chair may be endowed under this paragraph.

(5)(a) The Oregon Economic Development Commission shall approve expenditure of any remaining moneys in the Public Access Account consistent with this section and section 31 of this 1999 Act.

(b) Community colleges, state institutions of higher education, public libraries, public television corporations and rural health care providers may apply to the Oregon Economic Development Commission for funding from the Public Access Account under this subsection.

(c) Funds received from the account shall be used for the purchase of advanced telecommunications services, equipment or recurring costs of telecommunications connectivity. Priority shall be given to collaborative projects that improve access to advanced telecommunications services.

(d) Funds available in the Public Access Account under this subsection are continuously appropriated to the Economic Development Department for the purposes described in this subsection.

(6) Public libraries and rural health care providers must apply for federal universal service support in order to be eligible for a grant from the Public Access Account.

(7) The video transport and network management services purchased with funds made available under this section shall be purchased through the Oregon Department of Administrative Services.

SECTION 34. (1) In addition to and not in lieu of any other transfer or appropriation, for the calendar year beginning January 1, 2000, there is transferred to the Department of Education from the School Technology Account the sum of $9,600 for each eligible school facility as defined in section 35 (1) of this 1999 Act, which shall be expended for the purpose of providing a local area network and associated equipment to public school facilities pursuant to section 35 of this 1999 Act.

(2) In addition to and not in lieu of any other transfer or appropriation, there is transferred to the Department of Education from the School Technology Account, to be distributed to the Oregon Association of Education Service Districts for the Oregon Public Education Network, for:

(a) The recurring costs of Internet bandwidth:

(A) $500,000 for the calendar year beginning January 1, 2000; and

(B) $1 million for the calendar year beginning January 1, 2001.

(b) The purchase of telecommunications equipment:

(A) $250,000 for the calendar year beginning January 1, 2000; and

(B) $250,000 for the calendar year beginning January 1, 2001.

(c) The purpose of an on-line film and video server pilot project to digitize and electronically distribute video content, $250,000 for the calendar year beginning January 1, 2000.

(3) In addition to and not in lieu of any other transfer or appropriation, for the calendar years beginning January 1, 2000, and January 1, 2001, there is transferred to the Department of Education from the School Technology Account the sum of $5,400 for each eligible school facility as defined in section 36 (1) of this 1999 Act, for the purpose of distribution to school districts and education service districts pursuant to section 36 of this 1999 Act for the recurring costs of telecommunications connectivity.

(4)(a) In addition to and not in lieu of any other transfer or appropriation, there is transferred to the Department of Education from the School Technology Account for the purpose of purchasing a two-way interactive distance education system for each public high school and education service district:

(A) $3,050,000 for the calendar year beginning January 1, 2000; and

(B) $3,050,000 for the calendar year beginning January 1, 2001.

(b) The Department of Education, in consultation with the Oregon Department of Administrative Services, shall develop an implementation plan for this subsection. The implementation plan shall include an implementation timeline and requirements for each public high school and education service district that receives a two-way interactive distance education system under this subsection. The Department of Education shall ensure that a distance education system purchased by the Department of Education meets State of Oregon information technology standards, is consistent with any related interactive video strategy of the Oregon Department of Administrative Services and is procured through a competitively bid or negotiated state contract. The Department of Education shall reimburse the Oregon Department of Administrative Services from funds made available under this subsection for costs incurred by the Oregon Department of Administrative Services in developing the implementation plan.

(5)(a) In addition to and not in lieu of any other transfer or appropriation, there is transferred to the Department of Education from the School Technology Account for the purpose of paying the recurring costs of telecommunications connectivity and video services associated with the two-way interactive distance education systems purchased with funds transferred under this section:

(A) $550,000 for the calendar year beginning January 1, 2000; and

(B) $550,000 for the calendar year beginning January 1, 2001.

(b) Any telecommunications or video services purchased by the Department of Education with funds transferred under this subsection shall be purchased from the Oregon Department of Administrative Services as long as such services are available through the Oregon Department of Administrative Services at a comparable level and comparable cost as can be obtained elsewhere. Purchase of services and technology from the Oregon Department of Administrative Services shall be through the Oregon Enterprise Network provided the Oregon Enterprise Network can provide the services and technology at a cost equal to or less than the price for the same or similar services and technology from other contracts or programs of the Oregon Department of Administrative Services. The Department of Education shall ensure that telecommunications and video services purchased by the Department of Education meet State of Oregon information technology standards, are consistent with any related interactive video strategy of the Oregon Department of Administrative Services and are purchased through a competitively bid or negotiated state contract.

(c) Upon request of the North Central, Malheur, Jackson or Northwest Region education service district, the Department of Education may waive the requirements of paragraph (b) of this subsection until such time as the district changes its systems to use the services available through the Oregon Department of Administrative Services, as determined by the implementation plan established under subsection (4)(b) of this section.

(d) Upon request of a school district or education service district, the Oregon Department of Administrative Services may waive the requirements of paragraph (b) of this subsection if a state contract is not available for use by the district.

(6)(a) In addition to and not in lieu of any other transfer or appropriation, there is transferred to the Oregon Department of Administrative Services from the School Technology Account for the purchase of hub equipment necessary to support public school needs for two-way interactive video system bridging and other services:

(A) $700,000 for the calendar year beginning January 1, 2000; and

(B) $700,000 for the calendar year beginning January 1, 2001.

(b) The Oregon Department of Administrative Services shall reduce rates paid by school districts and education service districts to the department for video services by the amount transferred under this subsection.

(7) In addition to and not in lieu of any other transfer or appropriation, there is transferred to the Department of Education for the calendar year beginning January 1, 2000, and the calendar year beginning January 1, 2001, from the School Technology Account, any amounts remaining in the account after the transfers described in subsections (1) to (6) of this section are made, which shall be distributed to school districts pursuant to section 37 of this 1999 Act.

(8) Amounts described in this section shall be transferred each year only when sufficient funds are available in the School Technology Account.

SECTION 35. (1) As used in this section, "eligible school facility" does not include any school facility that is equipped for a local area network and has the associated equipment.

(2) During the calendar year beginning January 1, 2000, the Department of Education shall distribute grants in an amount that is equal to $9,600 per eligible school facility from amounts transferred under section 34 (1) of this 1999 Act to school districts for providing local area networks and associated equipment for kindergarten through grade 12 public school facilities.

(3) The State Board of Education may adopt any rules necessary for the administration of this section.

SECTION 36. (1) As used in this section, "eligible school facility" means:

(a) A public school facility in a school district; or

(b) A facility in an education service district, but not more than one facility per education service district.

(2) During the calendar years beginning January 1, 2000, and January 1, 2001, the Department of Education shall distribute grants in an amount that is equal to $5,400 per eligible school facility per year from amounts transferred under section 34 (3) of this 1999 Act to school districts and education service districts for recurring costs of telecommunications connectivity. Districts shall use funds received under this section to provide a minimum level of connectivity at frame relay T1 levels or greater to eligible school facilities.

(3) To be eligible to receive a grant under this section, a school district or education service district shall:

(a) Have applied for the federal e-rate discount program; and

(b) Purchase the telecommunications connectivity through an approved state contract that provides a flat rate price for telecommunications connectivity, regardless of the location of the eligible school facility.

(4) Upon request of a school district or education service district, the Department of Education may waive the requirements of subsection (3)(b) of this section if:

(a) The district can demonstrate that the use of the state contract is not feasible for the district;

(b) The state contract does not provide a comparable level of service at a comparable price as can be obtained elsewhere; or

(c) A state contract is not available for use by the district.

(5) The State Board of Education may adopt any rules necessary for the administration of this section.

SECTION 37. (1) As used in this section:

(a) "ADMw" means the weighted average daily membership of the school district for the prior fiscal year as calculated under ORS 327.013.

(b) "Statewide ADMw" means the total ADMw of all school districts for the prior fiscal year as calculated under ORS 327.013.

(2) During the calendar years beginning January 1, 2000, and January 1, 2001, the Department of Education shall distribute grants from amounts transferred under section 34 (7) of this 1999 Act to school districts.

(3) Except as provided in subsection (4) of this section, a school district's grant under this section = the school district's ADMw x (the total amount transferred to the department for the grants under section 34 (7) of this 1999 Act :SPLIT the total statewide ADMw).

(4) A school district's grant under this section shall not be less than $25,000.

(5) A school district that receives grant funds under this section shall use those funds to support telecommunications connectivity including:

(a) Building wiring and electrical power requirements;

(b) Servers, hubs and routers;

(c) Network design and installation;

(d) Video distance education equipment;

(e) Technology support staff salaries; and

(f) Other costs necessary to support telecommunications connectivity.

(6) A school district may not use grant funds received under this section for payment of debt service on bonds.

(7) The State Board of Education may adopt any rules necessary for the administration of this section.

SECTION 38. (1) Unless exempt from compliance under section 251(f) of the federal Telecommunications Act of 1996 (47 U.S.C. 251(f)), a telecommunications utility shall not:

(a) Discriminate against another provider of retail telecommunications services by unreasonably refusing or delaying access to the telecommunications utility's local exchange services.

(b) Discriminate against another provider of retail telecommunications services by providing access to required facilities on terms or conditions less favorable than those the telecommunications utility provides to itself and its affiliates. A telecommunications facility, feature or function is a required facility if:

(A) Access to a proprietary facility, feature or function is necessary; and

(B) Failure to provide access to the facility, feature or function would impair a telecommunications carrier seeking access from providing the services the carrier is seeking to provide.

(c) Unreasonably degrade or impair the speed, quality or efficiency of access or any other service, product or facility provided to another provider of telecommunications services.

(d) Fail to disclose in a timely and uniform manner, upon reasonable request and pursuant to a protective agreement concerning proprietary information, all information reasonably necessary for the design of network interface equipment, services or software that will meet the specifications of the telecommunications utility's local exchange network.

(e) Unreasonably refuse or delay interconnections or provide inferior interconnections to another provider of telecommunications services.

(f) Use basic exchange services rates, directly or indirectly, to subsidize or offset the cost of other products or services offered by the telecommunications utility.

(g) Discriminate in favor of itself or an affiliate in the provision and pricing of, or extension of credit for, any telephone service.

(h) Fail to provide a service, product or facility in accordance with applicable contracts, and tariffs and rules of the Public Utility Commission.

(i) Impose unreasonable or discriminatory restrictions on network elements or the resale of its services, except that:

(A) The telecommunications utility may require that residential service not be resold as a different class of service; and

(B) The commission may prohibit the resale of services the commission has approved for provision to a not-for-profit entity at rates below those offered to the general public.

(j) Provide telephone service to a person acting as a telecommunications provider if the commission has ordered the telecommunications utility to discontinue telephone service to the person.

(2) A complaint alleging a violation of subsection (1) of this section shall be heard by the Public Utility Commission or, at the commission's discretion, by an Administrative Law Judge designated by the commission. A hearing under this subsection shall be conducted in an expedited manner consistent with the following:

(a) The complaint shall be served upon the telecommunications carrier and filed with the commission.

(b) An answer or other responsive pleading to the complaint shall be filed with the commission not more than 10 days after receipt of the complaint. Copies of the answer or responsive pleading shall be served upon the complainant and upon the commission.

(c) A prehearing conference shall be held not later than 15 days after the complaint is filed. Hearing on the complaint shall commence not later than 30 days after the complaint is filed. Within 45 days after the complaint is filed, the commission shall either prepare a final decision or approve as final the decision of the Administrative Law Judge. The final decision shall be issued as an order of the commission in the manner provided under ORS 756.558.

(3) If the commission or Administrative Law Judge finds that a violation of this section has occurred, the commission shall, within five business days, order the telecommunications utility to remedy the violation within a specified period of time. The commission may prescribe specific action to be taken by the utility, including but not limited to submitting a plan for preventing future violations. If the violation continues beyond the time period specified in the commission's order, the commission on its own motion or upon the motion of an interested party may seek penalties as provided in ORS 759.990 or otherwise may seek enforcement under ORS 756.160 or 756.180, or both.

(4) Total annual penalties imposed on a telecommunications utility under this section and section 29 of this 1999 Act shall not exceed two percent of the utility's gross intrastate revenue from the sale of telecommunications services for the year preceding the year in which the violation occurred.

(5) An appeal from an order of the commission made pursuant to this section shall be made in the manner provided in ORS 756.580.

(6) The circuit court and, if on appeal from the circuit court, the Court of Appeals shall give proceedings under this section priority over all other matters before the court.

SECTION 39. ORS 759.990 is amended to read:

759.990. (1) Any telecommunications utility violating ORS 759.260 shall, upon conviction, forfeit and pay to the State Treasurer not less than $100 nor more than $1,000 for each offense. Violation of ORS 759.260 by an officer or agent of a telecommunications utility is punishable, upon conviction, by a fine of not less than $50 nor more than $100 for each offense.

(2) Any person violating ORS 759.275 shall, upon conviction, forfeit and pay to the State Treasurer not less than $100 and not more than $10,000 for each offense. Violation of ORS 759.275 by any agent or officer of any telecommunications utility or person is punishable, upon conviction, by a fine of not less than $100 and not more than $1,000 for each offense.

(3) Violation of ORS 759.280 is punishable, upon conviction, by a fine of not less than $50 nor more than $1,000 for each offense.

(4) Violation of ORS 759.355 is punishable, upon conviction, by a fine of not less than $500 nor more than $20,000 for each offense.

(5) Violation of ORS 759.360 is a felony and is punishable, upon conviction, by a fine of not less than $1,000 nor more than $20,000, or by imprisonment in the penitentiary for not less than one nor more than five years, or both.

(6) A telecommunications carrier, as defined in section 23 of this 1999 Act, shall forfeit a sum of not less than $100 nor more than $50,000 for each time that the carrier:

(a) Violates any statute administered by the Public Utility Commission;

(b) Commits any prohibited act, or fails to perform any duty enjoined upon the carrier by the commission;

(c) Fails to obey any lawful requirement or order made by the commission; or

(d) Fails to obey any judgment or decree made by any court upon the application of the commission.

(7) In construing and enforcing subsection (6) of this section, the act, omission or failure of any officer, agent or other person acting on behalf of or employed by a telecommunications carrier and acting within the scope of the person's employment shall in every case be deemed to be the act, omission or failure of such telecommunications carrier.

(8) Except when provided by law that a penalty, fine, forfeiture or other sum be paid to the aggrieved party, all penalties, fines, forfeitures or other sums collected or paid under subsection (6) of this section shall be paid into the General Fund and credited to the Public Utility Commission Account.

SECTION 40. (1) It is the intent of the Legislative Assembly that the state inform city and county governments of applications for the installation of fiber optic lines on public land and in public rights-of-way that have been submitted to state agencies.

(2) The Governor shall direct the Department of Transportation and the Division of State Lands to take such action as necessary to ensure that affected city and county governments are informed of applications for the installation and maintenance of fiber optic lines on public land and in public rights-of-way that have been submitted to the state agencies.

SECTION 41. Section 30 of this 1999 Act is repealed January 1, 2004.

SECTION 42. Sections 24 and 25 of this 1999 Act become operative September 1, 1999.

SECTION 43. ORS 283.525, 283.530 and 283.535 are repealed.

SECTION 44. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage.

Approved by the Governor September 1, 1999

Filed in the office of the Secretary of State September 2, 1999

Effective date September 1, 1999

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