S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        4888--A
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                    April 22, 2015
                                      ___________
       Introduced by Sens. PANEPINTO, COMRIE, LATIMER, PARKER -- read twice and
         ordered  printed, and when printed to be committed to the Committee on
         Energy and Telecommunications -- committee discharged,  bill  amended,
         ordered reprinted as amended and recommitted to said committee
       AN  ACT  to amend the public service law, in relation to creating stand-
         ards by which the public service commission  reviews  and  approves  a
         merger  or  acquisition  between  telephone corporations, cable corpo-
         rations, and combination telephone and cable corporations
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  The public service law is amended by adding a new article
    2  12 to read as follows:
    3                                  ARTICLE 12
    4            PROVISIONS RELATING TO TELEPHONE CORPORATIONS, CABLE
    5              CORPORATIONS, AND COMBINATION TELEPHONE AND CABLE
    6                                CORPORATIONS
    7  SECTION 250. DEFINITIONS.
    8          251. MERGERS OR ACQUISITIONS.
    9    S 250. DEFINITIONS. THE WORDS AND PHRASES USED IN THIS  ARTICLE  SHALL
   10  HAVE  THE  FOLLOWING MEANINGS UNLESS A DIFFERENT MEANING CLEARLY APPEARS
   11  IN THE CONTEXT:
   12    1. "CABLE CORPORATION" SHALL  MEAN  ANY  PERSON  OWNING,  CONTROLLING,
   13  OPERATING,  MANAGING  OR  LEASING  ONE  OR MORE CABLE TELEVISION SYSTEMS
   14  WITHIN THE STATE.
   15    2. "CABLE SYSTEM" SHALL HAVE THE SAME MEANING AS SET FORTH IN  SECTION
   16  TWO HUNDRED TWELVE OF THIS CHAPTER.
   17    3.  "COMBINATION TELEPHONE AND CABLE CORPORATION" SHALL MEAN ANY TELE-
   18  PHONE CORPORATION OPERATING IN NEW YORK UNDER COMMON  OWNERSHIP  WITH  A
   19  CABLE CORPORATION OPERATING IN NEW YORK OR ANY CABLE CORPORATION OPERAT-
   20  ING  IN  NEW  YORK  UNDER  COMMON OWNERSHIP WITH A TELEPHONE CORPORATION
   21  OPERATING IN NEW YORK, OR ANY SUCCESSOR OF EITHER CORPORATION.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02448-05-5
       S. 4888--A                          2
    1    S 251. MERGERS OR ACQUISITIONS. 1. (A) NO TELEPHONE CORPORATION, CABLE
    2  CORPORATION, OR COMBINATION TELEPHONE AND  CABLE  CORPORATION  THAT  HAS
    3  GROSS ANNUAL REVENUES EXCEEDING TWO HUNDRED MILLION DOLLARS SHALL TRANS-
    4  FER, LEASE OR MERGE ITS STOCK, WORKS, FRANCHISE OR SYSTEM OR ANY PART OF
    5  SUCH  WORKS  OR SYSTEM TO ANY OTHER PERSON OR CORPORATION THAT HAS GROSS
    6  ANNUAL REVENUES EXCEEDING TWO HUNDRED MILLION DOLLARS WITHOUT THE  WRIT-
    7  TEN CONSENT OF THE COMMISSION.
    8    (B)  NOTWITHSTANDING ANY OTHER SECTION OF LAW, NO CONSENT, AS REQUIRED
    9  BY PARAGRAPH (A) OF THIS SUBDIVISION, SHALL BE GIVEN BY  THE  COMMISSION
   10  TO  THE  ASSIGNMENT, TRANSFER, MERGER OR LEASE OF ANY RIGHT OR FRANCHISE
   11  TO OPERATE A TELEPHONE LINE OR ANY CABLE  TELEVISION  SYSTEM  UNLESS  IT
   12  SHALL  HAVE BEEN SHOWN BY THE PARTIES THAT SUCH ASSIGNMENT, TRANSFER, OR
   13  LEASE IS IN THE PUBLIC INTEREST.
   14    (C) NO CONSENT, AS REQUIRED BY  PARAGRAPH  (A)  OF  THIS  SUBDIVISION,
   15  SHALL  BE GIVEN BY THE COMMISSION TO THE ASSIGNMENT, TRANSFER, MERGER OR
   16  LEASE OF ANY RIGHT OR FRANCHISE TO OPERATE ANY PART OF  A  TELEPHONE  OR
   17  CABLE  CORPORATION'S WORKS OR SYSTEM, OR TO A CONTRACT FOR THE OPERATION
   18  OF SUCH ENTITY'S WORKS OR SYSTEM, UNLESS IT SHALL HAVE BEEN SHOWN BY THE
   19  PARTIES THAT SUCH ASSIGNMENT, TRANSFER, OR LEASE OR CONTRACT IS  IN  THE
   20  PUBLIC INTEREST.
   21    2. BEFORE CONSENTING TO THE MERGER, ACQUISITION, ASSIGNMENT, LEASE, OR
   22  TRANSFER  OF CONTROL OF ANY TELEPHONE CORPORATION, CABLE CORPORATION, OR
   23  COMBINATION TELEPHONE AND CABLE CORPORATION PURSUANT TO SUBDIVISION  ONE
   24  OF  THIS SECTION THE COMMISSION SHALL FIND THAT THE PROPOSAL DOES ALL OF
   25  THE FOLLOWING:
   26    (A) PROVIDES PUBLIC INTEREST BENEFITS TO THE EFFECTED SUBSCRIBERS.
   27    (B) MAINTAINS OR IMPROVES THE SERVICE QUALITY STANDARDS THE COMMISSION
   28  HAS ESTABLISHED FOR THE EFFECTED  TELEPHONE  CORPORATION,  CABLE  CORPO-
   29  RATION, OR COMBINATION TELEPHONE AND CABLE CORPORATION.
   30    (C)  MAINTAINS  OR  IMPROVES  THE FINANCIAL CONDITION OF THE RESULTING
   31  TELEPHONE CORPORATION, CABLE CORPORATION, OR COMBINATION  TELEPHONE  AND
   32  CABLE CORPORATION DOING BUSINESS IN THE STATE.
   33    (D)  MAINTAINS  OR  IMPROVES  THE  TELEPHONE CORPORATION, CABLE CORPO-
   34  RATION, OR COMBINATION TELEPHONE AND CABLE CORPORATION SERVICE OFFERINGS
   35  TO SUBSCRIBERS IN THE STATE.
   36    (E) MAINTAINS OR IMPROVES THE QUALITY OF MANAGEMENT OF  THE  RESULTING
   37  TELEPHONE  CORPORATION,  CABLE CORPORATION, OR COMBINATION TELEPHONE AND
   38  CABLE CORPORATION DOING BUSINESS IN THE STATE.
   39    (F) IS FAIR AND REASONABLE TO AFFECTED  TELEPHONE  CORPORATION,  CABLE
   40  CORPORATION,  OR  COMBINATION TELEPHONE AND CABLE CORPORATION EMPLOYEES,
   41  INCLUDING BOTH UNION AND NONUNION EMPLOYEES.
   42    (G) DOES NOT ADVERSELY AFFECT COMPETITION IN THE MARKETPLACE FOR TELE-
   43  PHONE OR CABLE SERVICES.
   44    (H) CREATES ENFORCEMENT MEASURES SO THAT IF POST-CONSENT  A  TELEPHONE
   45  CORPORATION,  CABLE  CORPORATION,  OR  COMBINATION  TELEPHONE  AND CABLE
   46  CORPORATION FAILS TO COMPLY WITH ANY CONDITION OR COMMITMENT MADE TO THE
   47  COMMISSION IN ORDER TO OBTAIN COMMISSION CONSENT, THE  COMMISSION  SHALL
   48  BE  AUTHORIZED  TO  COMPEL  PERFORMANCE  OR ORDER IMPLEMENTATION OF SUCH
   49  CONDITIONS OR COMMITMENTS.
   50    (I) EQUITABLY  ALLOCATES  THE  FORECASTED  POSITIVE  BENEFITS  OF  THE
   51  PROPOSAL BETWEEN SHAREHOLDERS AND SUBSCRIBERS, INCLUDING BUT NOT LIMITED
   52  TO, THE FORECASTED ECONOMIC BENEFITS. SUBSCRIBERS SHALL RECEIVE NOT LESS
   53  THAN FIFTY PERCENT OF SUCH FORECASTED POSITIVE BENEFITS. FOR THE PURPOSE
   54  OF  ALLOCATING  THE FORECASTED POSITIVE BENEFITS OF THE PROPOSAL BETWEEN
   55  SHAREHOLDERS AND SUBSCRIBERS, THE COMMISSION MAY DEEM, INCLUDING BUT NOT
   56  LIMITED TO, REINVESTMENT OF THE FORECASTED BENEFITS INTO  THE  TELEPHONE
       S. 4888--A                          3
    1  CORPORATION,  CABLE  CORPORATION,  OR  COMBINATION  TELEPHONE  AND CABLE
    2  CORPORATION'S INFRASTRUCTURE AS A BENEFIT RECEIVED BY SUBSCRIBERS.
    3    3.  WHEN  REVIEWING  A  MERGER,  ACQUISITION,  OR  TRANSFER OF CONTROL
    4  PROPOSAL, AS SET FORTH IN SUBDIVISION ONE OF THIS SECTION,  THE  COMMIS-
    5  SION  SHALL  CONSIDER  REASONABLE  ALTERNATIVES  OR MODIFICATIONS TO THE
    6  PROPOSAL AS RECOMMENDED BY OTHER PARTIES TO DETERMINE WHETHER OR NOT THE
    7  PROPOSAL IS IN THE PUBLIC INTEREST.
    8    4. THE PERSON OR CORPORATION SEEKING ACQUISITION OR CONTROL OF A TELE-
    9  PHONE CORPORATION, CABLE CORPORATION, OR COMBINATION TELEPHONE AND CABLE
   10  CORPORATION SHALL HAVE BEFORE THE COMMISSION THE BURDEN OF PROVING BY  A
   11  PREPONDERANCE  OF  THE EVIDENCE THAT THE REQUIREMENTS OF SUBDIVISION TWO
   12  OF THIS SECTION ARE SATISFIED.
   13    5. IN DETERMINING WHETHER OR NOT AN ACQUISITION OF A TELEPHONE  CORPO-
   14  RATION,  CABLE  CORPORATION,  OR  COMBINATION TELEPHONE AND CABLE CORPO-
   15  RATION HAS THE GROSS ANNUAL REVENUES EXCEEDING THE AMOUNT  SPECIFIED  IN
   16  SUBDIVISION TWO OF THIS SECTION, THE REVENUES OF THAT TELEPHONE OR CABLE
   17  CORPORATION'S  AFFILIATES  SHALL NOT BE CONSIDERED, UNLESS THE AFFILIATE
   18  IS TO BE UTILIZED FOR THE PURPOSE OF EFFECTING SUCH MERGER, ACQUISITION,
   19  OR CONTROL.
   20    6. PARAGRAPHS (A), (B), AND (C) OF SUBDIVISION  TWO  OF  THIS  SECTION
   21  SHALL NOT APPLY TO THE FORMATION OF A HOLDING COMPANY.
   22    7.  PARAGRAPHS  (A),  (B),  AND (C) OF SUBDIVISION TWO OF THIS SECTION
   23  SHALL NOT APPLY TO ACQUISITIONS OR CHANGES IN CONTROL THAT ARE  MANDATED
   24  BY EITHER THE COMMISSION OR THE LEGISLATURE.
   25    8.  WHEN  ISSUING  A  DECISION  ON  A PROPOSED MERGER, ACQUISITION, OR
   26  TRANSFER OF CONTROL PROPOSAL, AS REQUIRED BY  SUBDIVISION  ONE  OF  THIS
   27  SECTION, THE COMMISSION SHALL ISSUE A REPORT DETAILING HOW THAT DECISION
   28  WAS  REACHED WITHIN THIRTY DAYS OF ISSUING SUCH DECISION. IF THE COMMIS-
   29  SION GRANTS CONDITIONAL APPROVAL IN ITS DECISION, THE  DEPARTMENT  SHALL
   30  ISSUE  AN  ADDITIONAL  REPORT WITHIN ONE YEAR AFTER GRANTING SUCH CONDI-
   31  TIONAL APPROVAL DETAILING THE CORPORATION'S COMPLIANCE WITH SUCH  CONDI-
   32  TIONS OR COMMITMENTS. NOTHING IN THIS SECTION SHALL PRECLUDE THE DEPART-
   33  MENT FROM ISSUING ADDITIONAL REPORTS ON THE CORPORATION'S COMPLIANCE.
   34    9.  (A)  ANY  CONSENT  REQUIRED BY PARAGRAPH (A) OF SUBDIVISION ONE OF
   35  THIS SECTION SHALL ONLY BE PROVIDED  BY  THE  COMMISSION  AFTER  A  FULL
   36  EVIDENTIARY  HEARING WHICH SHALL INCLUDE THE STATE ATTORNEY GENERAL AS A
   37  PARTY TO THE PROCEEDING.
   38    (B) SUCH FULL EVIDENTIARY HEARING SHALL BE LIVE STREAMED ON THE INTER-
   39  NET AND ARCHIVED ON THE DEPARTMENT WEBSITE FOR PUBLIC VIEWING.
   40    10. (A) ANY CONSENT REQUIRED BY PARAGRAPH (A) OF  SUBDIVISION  ONE  OF
   41  THIS SECTION SHALL ONLY BE ISSUED BY THE COMMISSION AFTER A PUBLIC HEAR-
   42  ING WHERE MEMBERS OF THE PUBLIC MAY PROVIDE THE COMMISSION OR ITS DESIG-
   43  NEE WITH COMMENTS ON THE PROPOSAL.
   44    (B)  THE  COMMISSION SHALL ANNOUNCE THE PUBLIC HEARING AT LEAST THIRTY
   45  DAYS BEFORE THE DATE OF THE PUBLIC HEARING AND SHALL PUBLISH SUCH NOTICE
   46  ON ITS WEBSITE AT LEAST THIRTY DAYS BEFORE THE PUBLIC HEARING.
   47    (C) THE PUBLIC HEARING SHALL BE NO LESS THAN  FIFTEEN  DAYS  BEFORE  A
   48  CONSENT ON THE PROPOSAL IS ISSUED BY THE COMMISSION.
   49    (D)  THE  COMMISSION SHALL PUBLISH A REPORT ON THE PROPOSED PLAN WHICH
   50  SHALL BE POSTED AND ACCESSIBLE BY THE PUBLIC ON THE COMMISSION'S WEBSITE
   51  THIRTY DAYS PRIOR TO THE PUBLIC HEARING. SUCH A  REPORT  SHALL  DESCRIBE
   52  THE POTENTIAL BENEFITS AND DETRIMENTS OF THE PROPOSED PLAN.
   53    (E)  THE  COMMISSION SHALL SOLICIT AND COLLECT WRITTEN COMMENTS ON THE
   54  PROPOSAL FROM THE PUBLIC UPON THE ANNOUNCEMENT OF THE PUBLIC HEARING.
       S. 4888--A                          4
    1    11. THE COMMISSION SHALL ISSUE A WRITTEN "FINDING OF FACT" AS  TO  ALL
    2  OF  THE  ELEMENTS  REQUIRED  TO  BE  ANALYZED IN SUBDIVISION TWO OF THIS
    3  SECTION, INCLUDING BUT NOT LIMITED TO:
    4    (A)  AN  EXPLANATION  OF HOW THE DEPARTMENT DETERMINED THE "FORECASTED
    5  ECONOMIC BENEFITS" IN PARAGRAPH (I) OF SUBDIVISION TWO OF  THIS  SECTION
    6  AND  SPECIFICALLY  SET  FORTH  IN AN ITEMIZED MANNER HOW SUBSCRIBERS ARE
    7  INTENDED TO RECEIVE NOT LESS  THAN  FIFTY  PERCENT  OF  SUCH  FORECASTED
    8  ECONOMIC BENEFITS, AND
    9    (B)  A RATIONALE AS TO WHY THE COMMISSION HAS CONSENTED TO THE PARTIC-
   10  ULAR DISTRIBUTION OF  SUCH  FORECASTED  ECONOMIC  BENEFITS  BETWEEN  THE
   11  SUBSCRIBERS  AND  SHAREHOLDERS.    SUCH  FINDING OF FACT SHALL BE ISSUED
   12  WITHIN THIRTY DAYS OF THE COMMISSION ISSUING A CONSENT ORDER PURSUANT TO
   13  SUBDIVISION ONE OF THIS SECTION AND POSTED ON THE COMMISSION'S WEBSITE.
   14    12. (A) ANY REVIEW OF A MERGER OR ACQUISITION BY  THE  PUBLIC  SERVICE
   15  COMMISSION  PURSUANT  TO  THIS SECTION SHALL BE IN ADDITION TO ANY OTHER
   16  REVIEW REQUIRED BY THIS CHAPTER, INCLUDING BUT NOT LIMITED  TO  ARTICLES
   17  FIVE AND ELEVEN OF THIS CHAPTER.
   18    (B)  ANY  CONSENT OR APPROVAL OF A MERGER OR ACQUISITION BY THE PUBLIC
   19  SERVICE COMMISSION ISSUED PURSUANT TO THIS SECTION SHALL NOT BE  CONSID-
   20  ERED  AN APPROVAL OR CONSENT REQUIRED BY ANY OTHER SECTION OF THIS CHAP-
   21  TER, INCLUDING BUT NOT LIMITED TO ARTICLES FIVE AND ELEVEN OF THIS CHAP-
   22  TER, UNLESS OTHERWISE DEEMED BY THE COMMISSION.
   23    S 2. Severability clause. If any clause, sentence, paragraph, subdivi-
   24  sion, section or part of this act shall be  adjudged  by  any  court  of
   25  competent  jurisdiction  to  be invalid, such judgment shall not affect,
   26  impair, or invalidate the remainder thereof, but shall  be  confined  in
   27  its  operation  to the clause, sentence, paragraph, subdivision, section
   28  or part thereof directly involved in the controversy in which such judg-
   29  ment shall have been rendered. It is hereby declared to be the intent of
   30  the legislature that this act would  have  been  enacted  even  if  such
   31  invalid provisions had not been included herein.
   32    S 3. This act shall take effect immediately.