Request By:
Linda A. Pittenger
Communications Advisory Council
101 Cold Harbor Drive
Frankfort, Kentucky 40601-3050
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
You have asked the Attorney General whether surplus capacity on a statewide communications network may be offered to private users on a cost basis. You also ask whether, if the service may be offered to private users, church-supported educational institutions may participate via the network in exchange of library resources.
The network to which you refer is still in the requirements analysis stage, and consequently we canot identify with precision the services that would be offered to private users. In general, however, your proposal seems to offer a service that is or could be in competition with commercially provided services. While our state constitution does not prohibit the state from competing with private business, the sale of a state service requires some legislative authorization. For example, state parks offer lodging for a fee that competes with other establishments in the vicinity of the park. The charging of the fee is specifically authorized by statute in KRS 148.021. In contrast, the statutes that deal with information systems, KRS 61.940 to 61.957, make no provision for the sale of state network services to private users. We do not believe that the statutes may be interpreted to allow the state to engage in the regular sale of communications services, whether the sale be on a cost basis or on a profit basis. Any such plan would require authorization from the General Assembly.
Since we do not find any authority for the sale of communications services, a response to your second question is unnecessary.