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2021 Florida Statutes (Including 2021B Session)
Chapter 350
FLORIDA PUBLIC SERVICE COMMISSION
FLORIDA PUBLIC SERVICE COMMISSION
TITLE XXVII
RAILROADS AND OTHER REGULATED UTILITIESCHAPTER 350
FLORIDA PUBLIC SERVICE COMMISSION
350.001 Legislative intent.
350.01 Florida Public Service Commission; terms of commissioners; vacancies; election and duties of chair; quorum; proceedings; public records and public meetings exemptions.
350.011 Florida Public Service Commission; jurisdiction; powers and duties.
350.03 Power of Governor to remove and to fill vacancies.
350.031 Florida Public Service Commission Nominating Council.
350.04 Qualifications of commissioners.
350.041 Commissioners; standards of conduct.
350.042 Ex parte communications.
350.043 Enforcement and interpretation.
350.05 Oath of office.
350.06 Place of meeting; expenditures; employment of personnel; records availability and fees.
350.0603 Rulemaking authority and procedures for purchases.
350.0605 Former commissioners and employees; representation of clients before commission.
350.061 Public Counsel; appointment; oath; restrictions on Public Counsel and his or her employees.
350.0611 Public Counsel; duties and powers.
350.0612 Public Counsel; location.
350.0613 Public Counsel; employees; receipt of pleadings.
350.0614 Public Counsel; compensation and expenses.
350.111 “Regulated company” defined.
350.113 Florida Public Service Regulatory Trust Fund; moneys to be deposited therein.
350.115 Uniform systems and classifications of accounts.
350.117 Reports; audits.
350.121 Commission inquiries; confidentiality of business material.
350.123 Oaths; depositions; protective orders.
350.124 Compelled testimony.
350.125 Administrative law judges.
350.127 Penalties; rules; execution of contracts.
350.128 Judicial review.
350.81 Communications services offered by governmental entities.
350.001 Legislative intent.—The Florida Public Service Commission has been and shall continue to be an arm of the legislative branch of government. The Public Service Commission shall perform its duties independently. It is the desire of the Legislature that the Governor participate in the appointment process of commissioners to the Public Service Commission. The Legislature accordingly delegates to the Governor a limited authority with respect to the Public Service Commission by authorizing him or her to participate in the selection of members only in the manner prescribed by s. 350.031.
History.—s. 1, ch. 78-426; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 527, ch. 95-148; s. 2, ch. 2005-132.
350.01 Florida Public Service Commission; terms of commissioners; vacancies; election and duties of chair; quorum; proceedings; public records and public meetings exemptions.—
(1) The Florida Public Service Commission shall consist of five commissioners appointed pursuant to s. 350.031.
(2)(a) Each commissioner serving on July 1, 1978, shall be permitted to remain in office until the completion of his or her current term. Upon the expiration of the term, a successor shall be appointed in the manner prescribed by s. 350.031 for a 4-year term, except that the terms of the initial members appointed under this act shall be as follows:
1. The vacancy created by the present term ending in January, 1981, shall be filled by appointment for a 4-year term and for 4-year terms thereafter; and
2. The vacancies created by the two present terms ending in January, 1979, shall be filled by appointment for a 3-year term and for 4-year terms thereafter.
(b) Two additional commissioners shall be appointed in the manner prescribed by s. 350.031 for 4-year terms beginning the first Tuesday after the first Monday in January, 1979, and successors shall be appointed for 4-year terms thereafter with each term beginning on January 2 of the year the term commences and ending 4 years later on January 1.
(c) Vacancies on the commission shall be filled for the unexpired portion of the term in the same manner as original appointments to the commission.
(3) Any person serving on the commission who seeks to be appointed or reappointed shall file with the nominating council no later than June 1 prior to the year in which his or her term expires a statement that he or she desires to serve an additional term. A commissioner appointed after July 1, 2015, may not serve more than three consecutive terms.
(4) One member of the commission shall be elected by majority vote to serve as chair for a term of 2 years, beginning on January 2 of the first year of the term. A member may not serve two consecutive terms as chair.
(5) The primary duty of the chair is to serve as chief administrative officer of the commission; however, the chair may participate in any proceedings pending before the commission when administrative duties and time permit. In order to distribute the workload and expedite the commission’s calendar, the chair, in addition to other administrative duties, has authority to assign the various proceedings pending before the commission requiring hearings to two or more commissioners or to the commission’s staff of hearing examiners under the supervision of the office of general counsel. Only those commissioners assigned to a proceeding requiring hearings are entitled to participate in the final decision of the commission as to that proceeding; provided, if only two commissioners are assigned to a proceeding requiring hearings and cannot agree on a final decision, the chair shall cast the deciding vote for final disposition of the proceeding. If more than two commissioners are assigned to any proceeding, a majority of the members assigned shall constitute a quorum and a majority vote of the members assigned shall be essential to final commission disposition of those proceedings requiring actual participation by the commissioners. If a commissioner becomes unavailable after assignment to a particular proceeding, the chair shall assign a substitute commissioner. In those proceedings assigned to a hearing examiner, following the conclusion of the hearings, the designated hearing examiner is responsible for preparing recommendations for final disposition by a majority vote of the commission. A petition for reconsideration shall be voted upon by those commissioners participating in the final disposition of the proceeding.
(6) A majority of the commissioners may determine that the full commission shall sit in any proceeding. The public counsel or a person regulated by the Public Service Commission and substantially affected by a proceeding may file a petition that the proceeding be assigned to the full commission. Within 15 days of receipt by the commission of any petition or application, the full commission shall dispose of such petition by majority vote and render a written decision thereon prior to assignment of less than the full commission to a proceeding. In disposing of such petition, the commission shall consider the overall general public interest and impact of the pending proceeding, including but not limited to the following criteria: the magnitude of a rate filing, including the number of customers affected and the total revenues requested; the services rendered to the affected public; the urgency of the requested action; the needs of the consuming public and the utility; value of service involved; the effect on consumer relations, regulatory policies, conservation, economy, competition, public health, and safety of the area involved. If the petition is denied, the commission shall set forth the grounds for denial.
(7) This section does not prohibit a commissioner, designated by the chair, from conducting a hearing as provided under ss. 120.569 and 120.57(1) and the rules of the commission adopted pursuant thereto.
(8) Each meeting, including each internal affairs meeting, workshop, hearing, or other proceeding attended by two or more commissioners, and each such meeting, workshop, hearing, or other proceeding where a decision that concerns the rights or obligations of any person is made, shall be streamed live on the Internet, and a recorded copy of the meeting, workshop, hearing, or proceeding shall be made available on the commission’s website.
(9) Notwithstanding the provisions of subsection (8), those portions of a hearing conducted by the commission wherein proprietary confidential business information that is confidential or exempt from s. 119.07(1), pursuant to s. 364.183, s. 366.093, s. 367.156, or s. 368.108, is discussed are exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution. No exempt portion of a hearing may be off the record, and all exempt portions shall be recorded and transcribed. Such recordings and transcripts are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, unless a court of competent jurisdiction, after an in camera review, determines that the hearing was not restricted to the discussion of proprietary confidential business information made confidential and exempt pursuant to s. 364.183, s. 366.093, s. 367.156, or s. 368.108. In the event of such a judicial determination, only that portion of the recording and transcript which reveals nonexempt information may be disclosed to a third party. This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2026, unless reviewed and saved from repeal through reenactment by the Legislature.
History.—s. 1, ch. 4549, 1897; s. 1, ch. 4700, 1899; GS 2882; s. 10, ch. 7838, 1919; RGS 4607; CGL 6692; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 2, ch. 78-426; s. 211, ch. 81-259; s. 2, ch. 81-318; s. 28, ch. 85-81; s. 6, ch. 87-50; s. 56, ch. 95-143; s. 528, ch. 95-148; s. 89, ch. 96-410; s. 1, ch. 2006-214; s. 31, ch. 2008-227; s. 1, ch. 2015-129; s. 1, ch. 2021-72.
350.011 Florida Public Service Commission; jurisdiction; powers and duties.—The state regulatory agency heretofore known as the Florida Railroad and Public Utilities Commission or Florida Public Utilities Commission shall be known and hereafter called Florida Public Service Commission, and all rights, powers, duties, responsibilities, jurisdiction, and judicial powers now vested in said Railroad and Public Utilities Commission or said Florida Public Utilities Commission and the commissioners thereof are vested in the Florida Public Service Commission and the commissioners thereof.
History.—s. 1, ch. 24095, 1947; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 2, ch. 2006-214.
350.03 Power of Governor to remove and to fill vacancies.—The Governor shall have the same power to remove, suspend, or appoint to fill vacancies in the office of commissioners as in other offices, as set forth in s. 7, Art. IV of the State Constitution.
History.—s. 1, ch. 4700, 1899; GS 2884; RGS 4609; CGL 6694; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 33, ch. 2008-227.
350.031 Florida Public Service Commission Nominating Council.—
(1)(a) There is created a Florida Public Service Commission Nominating Council consisting of 12 members. At least one member of the council must be 60 years of age or older. Six members, including three members of the House of Representatives, one of whom shall be a member of the minority party, shall be appointed by and serve at the pleasure of the Speaker of the House of Representatives. Six members, including three members of the Senate, one of whom shall be a member of the minority party, shall be appointed by and serve at the pleasure of the President of the Senate.
(b) All terms shall be for 4 years except those members of the House and Senate, who shall serve 2-year terms concurrent with the 2-year elected terms of House members. All terms of the members of the Public Service Commission Nominating Council existing on June 30, 2008, shall terminate upon the effective date of this act; however, such members may serve an additional term if reappointed by the Speaker of the House of Representatives or the President of the Senate. To establish staggered terms, appointments of members shall be made for initial terms to begin on July 1, 2008, with each appointing officer to appoint three legislator members, one of whom shall be a member of the minority party, to terms through the remainder of the 2-year elected terms of House members; one nonlegislator member to a 6-month term; one nonlegislator member to an 18-month term; and one nonlegislator member to a 42-month term. Thereafter, the terms of the nonlegislator members of the Public Service Commission Nominating Council shall begin on January 2 of the year the term commences and end 4 years later on January 1.
(c) The President of the Senate shall appoint the chair of the council in even-numbered years and the vice chair in odd-numbered years, and the Speaker of the House of Representatives shall appoint the chair of the council in odd-numbered years and the vice chair in even-numbered years, from among the council membership.
(d) Vacancies on the council shall be filled for the unexpired portion of the term in the same manner as original appointments to the council. A member may not be reappointed to the council, except for a member of the House of Representatives or the Senate who may be appointed to two 2-year terms, members who are reappointed pursuant to paragraph (b), or a person who is appointed to fill the remaining portion of an unexpired term.
(2)(a) No member or spouse shall be the holder of the stocks or bonds of any company, other than through ownership of shares in a mutual fund, regulated by the commission, or any affiliated company of any company regulated by the commission, or be an agent or employee of, or have any interest in, any company regulated by the commission or any affiliated company of any company regulated by the commission, or in any firm which represents in any capacity either companies which are regulated by the commission or affiliates of companies regulated by the commission. As a condition of appointment to the council, each appointee shall affirm to the Speaker and the President his or her qualification by the following certification: “I hereby certify that I am not a stockholder, other than through ownership of shares in a mutual fund, in any company regulated by the commission or in any affiliate of a company regulated by the commission, nor in any way, directly or indirectly, in the employment of, or engaged in the management of any company regulated by the commission or any affiliate of a company regulated by the commission, or in any firm which represents in any capacity either companies which are regulated by the commission or affiliates of companies regulated by the commission.”
This certification is made as condition to appointment to the Florida Public Service Commission Nominating Council.
(b) A member of the council may be removed by the Speaker of the House of Representatives and the President of the Senate upon a finding by the Speaker and the President that the council member has violated any provision of this subsection or for other good cause.
(c) If a member of the council does not meet the requirements of this subsection, the President of the Senate or the Speaker of the House of Representatives, as appropriate, shall appoint a legislative replacement.
(3) A majority of the membership of the council may conduct any business before the council. All meetings and proceedings of the council shall be staffed by the Office of Legislative Services and shall be subject to the provisions of ss. 119.07 and 286.011. Members of the council are entitled to receive per diem and travel expenses as provided in s. 112.061, which shall be funded by the Florida Public Service Regulatory Trust Fund. Applicants invited for interviews before the council may, in the discretion of the council, receive per diem and travel expenses as provided in s. 112.061, which shall be funded by the Florida Public Service Regulatory Trust Fund. The council shall establish policies and procedures to govern the process by which applicants are nominated.
(4) The council may spend a nominal amount, not to exceed $10,000, to advertise a vacancy on the council, which shall be funded by the Florida Public Service Regulatory Trust Fund.
(5) A person may not be nominated to the Governor for appointment to the Public Service Commission until the council has determined that the person is competent and knowledgeable in one or more fields, which shall include, but not be limited to: public affairs, law, economics, accounting, engineering, finance, natural resource conservation, energy, or another field substantially related to the duties and functions of the commission. The commission shall fairly represent the above-stated fields. Recommendations of the council shall be nonpartisan.
(6) It is the responsibility of the council to nominate to the Governor no fewer than three persons for each vacancy occurring on the Public Service Commission. The council shall submit the recommendations to the Governor by September 15 of those years in which the terms are to begin the following January, or within 60 days after a vacancy occurs for any reason other than the expiration of the term.
(7) The Governor shall fill a vacancy occurring on the Public Service Commission by appointment of one of the applicants nominated by the council only after a background investigation of such applicant has been conducted by the Florida Department of Law Enforcement. If the Governor has not made an appointment within 30 consecutive calendar days after the receipt of the recommendation, the council, by majority vote, shall appoint, within 30 days after the expiration of the Governor’s time to make an appointment, one person from the applicants previously nominated to the Governor to fill the vacancy.
(8) Each appointment to the Public Service Commission shall be subject to confirmation by the Senate during the next regular session after the vacancy occurs. If the Senate refuses to confirm or fails to consider the Governor’s appointment, the council shall initiate, in accordance with this section, the nominating process within 30 days.
(9) When the Governor makes an appointment to fill a vacancy occurring due to expiration of the term, and that appointment has not been confirmed by the Senate before the appointing Governor’s term ends, a successor Governor may, within 30 days after taking office, recall the appointment and, prior to the first day of the next regular session, make a replacement appointment from the list provided to the previous Governor by the council. Such an appointment is subject to confirmation by the Senate at the next regular session following the creation of the vacancy to which the appointments are being made. If the replacement appointment is not timely made, or if the appointment is not confirmed by the Senate for any reason, the council, by majority vote, shall appoint, within 30 days after the Legislature adjourns sine die, one person from the applicants previously nominated to the Governor to fill the vacancy, and this appointee is subject to confirmation by the Senate during the next regular session following the appointment.
(10) In keeping with the purpose of the council, which is to select nominees to be appointed to an arm of the legislative branch of government, a person who is employed and receives payment, or who contracts for economic consideration, for the purpose of influencing or attempting to influence action of the council through oral or written communication or through an attempt to obtain the goodwill of a legislator or nonlegislator member of the council, or a person who is principally employed for governmental affairs by another person or governmental entity to act on behalf of that other person or entity for this purpose, must register as a lobbyist pursuant to s. 11.045 and otherwise comply with the requirements of that section. The Legislature shall implement this subsection by joint rule.
History.—s. 3, ch. 78-426; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 6, ch. 87-172; s. 1, ch. 90-272; s. 529, ch. 95-148; s. 31, ch. 98-136; s. 141, ch. 99-13; s. 40, ch. 2000-164; s. 3, ch. 2005-132; s. 34, ch. 2008-227; s. 2, ch. 2015-129.
350.04 Qualifications of commissioners.—A commissioner may not, at the time of appointment or during his or her term of office:
(1) Have any financial interest, other than ownership of shares in a mutual fund, in any business entity which, either directly or indirectly, owns or controls any public utility regulated by the commission, in any public utility regulated by the commission, or in any business entity which, either directly or indirectly, is an affiliate or subsidiary of any public utility regulated by the commission.
(2) Be employed by or engaged in any business activity with any business entity which, either directly or indirectly, owns or controls any public utility regulated by the commission, by any public utility regulated by the commission, or by any business entity which, either directly or indirectly, is an affiliate or subsidiary of any public utility regulated by the commission.
History.—s. 1, ch. 4700, 1899; GS 2885; RGS 4610; CGL 6695; s. 1, ch. 65-422; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 2, ch. 90-272; s. 530, ch. 95-148.
350.041 Commissioners; standards of conduct.—
(1) STATEMENT OF INTENT.—In addition to the provisions of part III of chapter 112, which are applicable to public service commissioners by virtue of their being public officers and full-time employees of the legislative branch of government, the conduct of public service commissioners shall be governed by the standards of conduct provided in this section. Nothing shall prohibit the standards of conduct from being more restrictive than part III of chapter 112. Further, this section shall not be construed to contravene the restrictions of part III of chapter 112. In the event of a conflict between this section and part III of chapter 112, the more restrictive provision shall apply.
(2) STANDARDS OF CONDUCT.—
(a) A commissioner may not accept anything from any business entity which, either directly or indirectly, owns or controls any public utility regulated by the commission, from any public utility regulated by the commission, or from any business entity which, either directly or indirectly, is an affiliate or subsidiary of any public utility regulated by the commission. A commissioner may attend conferences and associated meals and events that are generally available to all conference participants without payment of any fees in addition to the conference fee. Additionally, while attending a conference, a commissioner may attend meetings, meals, or events that are not sponsored, in whole or in part, by any representative of any public utility regulated by the commission and that are limited to commissioners only, committee members, or speakers if the commissioner is a member of a committee of the association of regulatory agencies that organized the conference or is a speaker at the conference. It is not a violation of this paragraph for a commissioner to attend a conference for which conference participants who are employed by a utility regulated by the commission have paid a higher conference registration fee than the commissioner, or to attend a meal or event that is generally available to all conference participants without payment of any fees in addition to the conference fee and that is sponsored, in whole or in part, by a utility regulated by the commission. If, during the course of an investigation by the Commission on Ethics into an alleged violation of this paragraph, allegations are made as to the identity of the person giving or providing the prohibited gift, that person must be given notice and an opportunity to participate in the investigation and relevant proceedings to present a defense. If the Commission on Ethics determines that the person gave or provided a prohibited gift, the person may not appear before the commission or otherwise represent anyone before the commission for a period of 2 years.
(b) A commissioner may not accept any form of employment with or engage in any business activity with any business entity which, either directly or indirectly, owns or controls any public utility regulated by the commission, any public utility regulated by the commission, or any business entity which, either directly or indirectly, is an affiliate or subsidiary of any public utility regulated by the commission.
(c) A commissioner may not have any financial interest, other than shares in a mutual fund, in any public utility regulated by the commission, in any business entity which, either directly or indirectly, owns or controls any public utility regulated by the commission, or in any business entity which, either directly or indirectly, is an affiliate or subsidiary of any public utility regulated by the commission. If a commissioner acquires any financial interest prohibited by this section during his or her term of office as a result of events or actions beyond the commissioner’s control, he or she shall immediately sell such financial interest or place such financial interest in a blind trust at a financial institution. A commissioner may not attempt to influence, or exercise any control over, decisions regarding the blind trust.
(d) A commissioner may not accept anything from a party in a proceeding currently pending before the commission. If, during the course of an investigation by the Commission on Ethics into an alleged violation of this paragraph, allegations are made as to the identity of the person giving or providing the prohibited gift, that person must be given notice and an opportunity to participate in the investigation and relevant proceedings to present a defense. If the Commission on Ethics determines that the person gave or provided a prohibited gift, the person may not appear before the commission or otherwise represent anyone before the commission for a period of 2 years.
(e) A commissioner may not serve as the representative of any political party or on any executive committee or other governing body of a political party; serve as an executive officer or employee of any political party, committee, organization, or association; receive remuneration for activities on behalf of any candidate for public office; engage on behalf of any candidate for public office in the solicitation of votes or other activities on behalf of such candidacy; or become a candidate for election to any public office without first resigning from office.
(f) A commissioner, during his or her term of office, may not make any public comment regarding the merits of any proceeding under ss. 120.569 and 120.57 currently pending before the commission.
(g) A commissioner may not conduct himself or herself in an unprofessional manner at any time during the performance of his or her official duties.
(h) A commissioner must avoid impropriety in all of his or her activities and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the commission.
(i) A commissioner may not directly or indirectly, through staff or other means, solicit anything of value from any public utility regulated by the commission, or from any business entity that, whether directly or indirectly, is an affiliate or subsidiary of any public utility regulated by the commission, or from any party appearing in a proceeding considered by the commission in the last 2 years.
(3) ETHICS TRAINING.—Beginning January 1, 2016, a commissioner must annually complete at least 4 hours of ethics training that addresses, at a minimum, s. 8, Art. II of the State Constitution, the Code of Ethics for Public Officers and Employees, and the public records and public meetings laws of this state. This requirement may be satisfied by completion of a continuing legal education class or other continuing professional education class, seminar, or presentation, if the required subjects are covered.
(4) INVESTIGATION OF ALLEGED VIOLATIONS; REPORT; ENFORCEMENT.—The Commission on Ethics shall accept and investigate any alleged violations of this section pursuant to the procedures contained in ss. 112.322-112.3241. The Commission on Ethics shall provide the Governor and the Florida Public Service Commission Nominating Council with a report of its findings and recommendations. The Governor is authorized to enforce the findings and recommendations of the Commission on Ethics, pursuant to part III of chapter 112. A public service commissioner or a member of the Florida Public Service Commission Nominating Council may request an advisory opinion from the Commission on Ethics, pursuant to s. 112.322(3)(a), regarding the standards of conduct or prohibitions set forth in this section and ss. 350.031, 350.04, and 350.042.
History.—s. 3, ch. 90-272; s. 531, ch. 95-148; s. 90, ch. 96-410; s. 4, ch. 2005-132; s. 3, ch. 2015-129.
350.042 Ex parte communications.—
(1) A commissioner should accord to every person who is legally interested in a proceeding, or the person’s lawyer, full right to be heard according to law, and, except as authorized by law, shall neither initiate nor consider ex parte communications concerning the merits, threat, or offer of reward in any proceeding under s. 120.569 or s. 120.57 that is currently pending before the commission or that he or she knows or reasonably expects will be filed with the commission within 180 days after the date of any such communication, other than a proceeding under s. 120.54 or s. 120.565, workshops, or internal affairs meetings. An individual may not discuss ex parte with a commissioner the merits of any issue that he or she knows will be filed with the commission within 180 days. This subsection does not apply to commission staff.
(2) The provisions of this section shall not prohibit an individual residential ratepayer from communicating with a commissioner, provided that the ratepayer is representing only himself or herself, without compensation.
(3)(a) The Legislature finds that it is important to have commissioners who are educated and informed on regulatory policies and developments in science, technology, business management, finance, law, and public policy which are associated with the industries that the commissioners regulate. The Legislature also finds that it is in the public interest for commissioners to become educated and informed on these matters through active participation in meetings that are scheduled by organizations that sponsor such educational or informational sessions, programs, conferences, and similar events and that are duly noticed and open to the public.
(b) As used in this subsection, the term “active participation” or “participating in” includes, but is not limited to, attending or speaking at educational sessions, participating in organization governance by attending meetings, serving on committees or in leadership positions, participating in panel discussions, and attending meals and receptions associated with such events that are open to all attendees.
(c) The prohibition in subsection (1) remains in effect at all times at such meetings wherever located. While participating in such meetings, a commissioner shall:
1. Refrain from commenting on or discussing any proceeding under s. 120.569 or s. 120.57 which is currently pending before the commission or that he or she knows or reasonably expects will be filed with the commission within 180 days after the meeting.
2. Use reasonable care to ensure that the content of the educational session or other session in which the commissioner participates is not designed to address or create a forum to influence the commissioner on any proceeding under s. 120.569 or s. 120.57 which is currently pending before the commission or that he or she knows or reasonably expects will be filed with the commission within 180 days after the meeting.
(4) If a commissioner knowingly receives an ex parte communication relative to a proceeding other than as set forth in subsection (1), to which he or she is assigned, he or she must place on the record of the proceeding copies of all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received and all oral responses made, and shall give written notice to all parties to the communication that such matters have been placed on the record. Any party who desires to respond to an ex parte communication may do so. The response must be received by the commission within 10 days after receiving notice that the ex parte communication has been placed on the record. The commissioner may, if he or she deems it necessary to eliminate the effect of an ex parte communication received by him or her, withdraw from the proceeding, in which case the chair shall substitute another commissioner for the proceeding.
(5) Any individual who makes an ex parte communication shall submit to the commission a written statement describing the nature of such communication, to include the name of the person making the communication, the name of the commissioner or commissioners receiving the communication, copies of all written communications made, all written responses to such communications, and a memorandum stating the substance of all oral communications received and all oral responses made. The commission shall place on the record of a proceeding all such communications.
(6) Any commissioner who knowingly fails to place on the record any such communications, in violation of the section, within 15 days of the date of such communication is subject to removal and may be assessed a civil penalty not to exceed $5,000.
(7)(a) It shall be the duty of the Commission on Ethics to receive and investigate sworn complaints of violations of this section pursuant to the procedures contained in ss. 112.322-112.3241.
(b) If the Commission on Ethics finds that there has been a violation of this section by a public service commissioner, it shall provide the Governor and the Florida Public Service Commission Nominating Council with a report of its findings and recommendations. The Governor is authorized to enforce the findings and recommendations of the Commission on Ethics, pursuant to part III of chapter 112 and to remove from office a commissioner who is found by the Commission on Ethics to have willfully and knowingly violated this section. The Governor shall remove from office a commissioner who is found by the Commission on Ethics to have willfully and knowingly violated this section after a previous finding by the Commission on Ethics that the commissioner willfully and knowingly violated this section in a separate matter.
(c) If a commissioner fails or refuses to pay the Commission on Ethics any civil penalties assessed pursuant to the provisions of this section, the Commission on Ethics may bring an action in any circuit court to enforce such penalty.
(d) If, during the course of an investigation by the Commission on Ethics into an alleged violation of this section, allegations are made as to the identity of the person who participated in the ex parte communication, that person must be given notice and an opportunity to participate in the investigation and relevant proceedings to present a defense. If the Commission on Ethics determines that the person participated in the ex parte communication, the person may not appear before the commission or otherwise represent anyone before the commission for a period of 2 years.
History.—s. 4, ch. 90-272; s. 532, ch. 95-148; s. 5, ch. 2005-132; s. 4, ch. 2015-129.
350.043 Enforcement and interpretation.—Any violation of s. 350.031, s. 350.04, s. 350.041, s. 350.042, or s. 350.0605 by a commissioner, former commissioner, former employee, or Public Service Commission Nominating Council member shall be punishable as provided in ss. 112.317 and 112.324. The Commission on Ethics is hereby given the power and authority to investigate complaints of violation of this chapter in the manner provided in part III of chapter 112, as if this section were included in that part. A commissioner may request an advisory opinion from the Commission on Ethics as provided by s. 112.322(3)(a).
History.—s. 5, ch. 90-272; s. 13, ch. 94-277.
350.05 Oath of office.—Before entering upon the duties of his or her office each commissioner shall subscribe to the following oath: “I do solemnly swear (or affirm) that I will support, protect and defend the Constitution and Government of the United States and of the State of Florida; that I am qualified to hold office under the constitution of the state, and that I will well and faithfully perform at all times the duties of Florida Public Service Commissioner, on which I am now about to enter in a professional, independent, objective, and nonpartisan manner; that I do not have any financial, employment, or business interest which is prohibited by chapter 350, Florida Statutes; and that I will abide by the standards of conduct required of me by chapters 112 and 350, Florida Statutes, so help me God.” In case any commissioner should in any way become disqualified, he or she shall at once remove such disqualification or resign, and upon his or her failure to do so, he or she shall be suspended from office by the Governor and dealt with as provided by law.
History.—s. 1, ch. 4700, 1899; GS 2886; RGS 4611; CGL 6696; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 2, ch. 65-422; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 6, ch. 90-272; s. 533, ch. 95-148.
350.06 Place of meeting; expenditures; employment of personnel; records availability and fees.—
(1) The offices of said commissioners shall be in the vicinity of Tallahassee, but the commissioners may hold sessions anywhere in the state at their discretion.
(2) All sums of money authorized to be paid on account of said commissioners shall be paid out of the State Treasury only on the order of the Chief Financial Officer.
(3) The commissioners may employ clerical, technical, and professional personnel reasonably necessary for the performance of their duties and may also employ one or more persons capable of stenographic court reporting, to be known as the official reporters of the commission.
(4) When needed, the commission may engage supplementary qualified reporters at their usual rate of compensation; however, the supplementary reporters shall furnish the commission the original certified transcripts of testimony taken by them.
(5) The commission shall make available to the public counsel the original copy of all transcripts for use and study in the commission offices. If the commission makes any copies of transcripts for internal use and if the public counsel has so requested in writing to the clerk of the commission, the commission shall supply the public counsel with a copy of the transcript at no charge.
(6) The commission shall collect for copying, examining, comparing, correcting, verifying, certifying, or furnishing orders, records, transcripts of testimony, papers, or other instruments no more than the same fees that are allowed clerks of the circuit courts of this state. In cases where the fee would amount to less than $1, no fee shall be charged.
(7) Copies of commission orders furnished to public officials, newspapers, periodical publications, federal agencies, state officials of other states, and parties to the proceeding in which the order was entered and their attorneys shall be without charge. However, the commission may in its discretion charge fees for the furnishing of more than one copy of any order to any of the foregoing.
(8) The commission shall keep accounting records in which all fees collected by it as provided for herein shall be recorded, together with the amount and purpose for which collected. The accounting records shall be public records. All moneys collected pursuant to this section by the commission shall be deposited in the State Treasury to the credit of the Florida Public Service Regulatory Trust Fund.
History.—s. 2, ch. 4700, 1899; GS 2887; s. 1, ch. 5625, 1907; s. 1, ch. 7811, 1919; RGS 4612; s. 1, ch. 11365, 1925; s. 2, ch. 12218, 1927; CGL 6697; s. 1, ch. 15720, 1931; s. 2, ch. 75-109; s. 2, ch. 81-318; s. 9, ch. 85-61; s. 6, ch. 87-50; s. 23, ch. 87-225; s. 534, ch. 95-148; s. 377, ch. 2003-261; s. 5, ch. 2006-214.
350.0603 Rulemaking authority and procedures for purchases.—The Florida Public Service Commission may adopt rules and procedures for purchases of commodities and services, including procurement of vehicles, office space, and contractual services necessary for efficient operation. These procedures must recognize that fair and open competition is a basic tenet of public procurement and that both documentation of the acts taken and effective monitoring mechanisms are important to the process.
History.—s. 1, ch. 98-42.
350.0605 Former commissioners and employees; representation of clients before commission.—
(1) Any former commissioner of the Public Service Commission is prohibited from appearing before the commission representing any client or any industry regulated by the Public Service Commission for a period of 2 years following termination of service on the commission.
(2) Any former employee of the commission is prohibited from appearing before the commission representing any client regulated by the Public Service Commission on any matter which was pending at the time of termination and in which such former employee had participated.
(3) For a period of 2 years following termination of service on the commission, a former member may not accept employment by or compensation from a business entity which, directly or indirectly, owns or controls a public utility regulated by the commission, from a public utility regulated by the commission, from a business entity which, directly or indirectly, is an affiliate or subsidiary of a public utility regulated by the commission or is an actual business competitor of a local exchange company or public utility regulated by the commission and is otherwise exempt from regulation by the commission under ss. 364.02(13) and 366.02(1), or from a business entity or trade association that has been a party to a commission proceeding within the 2 years preceding the member’s termination of service on the commission. This subsection applies only to members of the Florida Public Service Commission who are appointed or reappointed after May 10, 1993.
History.—s. 4, ch. 78-426; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 1, ch. 93-201; s. 142, ch. 99-13; s. 24, ch. 2003-32; s. 24, ch. 2005-132; s. 58, ch. 2011-36; s. 35, ch. 2011-64.
350.061 Public Counsel; appointment; oath; restrictions on Public Counsel and his or her employees.—
(1) The committee designated by joint rule of the Legislature or by agreement between the President of the Senate and the Speaker of the House of Representatives as the Committee on Public Counsel Oversight shall appoint a Public Counsel to represent the general public of Florida before the Florida Public Service Commission. The Public Counsel shall be an attorney admitted to practice before the Florida Supreme Court, shall be appointed for a term of 4 years, and may be reappointed thereafter, provided that a person appointed as the Public Counsel may not serve more than 12 consecutive years in the position. However, the time served by the Public Counsel before July 1, 2020, may not be considered in applying the limitation on consecutive years of service. The Public Counsel shall be appointed by a majority vote of the committee appointees of each house and may be removed from office by a majority vote of the committee appointees of each house. A person may continue as Public Counsel beyond the 4-year term until his or her successor is appointed and takes office, unless the person is removed by a vote of the committee. The Committee on Public Counsel Oversight shall receive applications, conduct interviews, and appoint a Public Counsel to a 4-year term beginning on March 1, 2021, and every 4 years thereafter. The Public Counsel shall perform his or her duties independently. Vacancies in the office shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
(2) The Public Counsel shall take and subscribe to the oath of office required of state officers by the State Constitution.
(3) No officer or full-time employee of the Public Counsel shall actively engage in any other business or profession; serve as the representative of any political party or on any executive committee or other governing body thereof; serve as an executive, officer, or employee of any political party, committee, organization, or association; receive remuneration for activities on behalf of any candidate for public office; or engage on behalf of any candidate for public office in the solicitation of votes or other activities in behalf of such candidacy. Neither the Public Counsel nor any employee of the Public Counsel shall become a candidate for election to public office unless he or she shall first resign from his or her office or employment.
History.—s. 1, ch. 74-195; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 535, ch. 95-148; s. 6, ch. 2005-132; s. 35, ch. 2008-227; s. 29, ch. 2011-34; s. 1, ch. 2020-137.
350.0611 Public Counsel; duties and powers.—It shall be the duty of the Public Counsel to provide legal representation for the people of the state in proceedings before the commission and in proceedings before counties pursuant to s. 367.171(8). The Public Counsel shall have such powers as are necessary to carry out the duties of his or her office, including, but not limited to, the following specific powers:
(1) To recommend to the commission or the counties, by petition, the commencement of any proceeding or action or to appear, in the name of the state or its citizens, in any proceeding or action before the commission or the counties and urge therein any position which he or she deems to be in the public interest, whether consistent or inconsistent with positions previously adopted by the commission or the counties, and utilize therein all forms of discovery available to attorneys in civil actions generally, subject to protective orders of the commission or the counties which shall be reviewable by summary procedure in the circuit courts of this state;
(2) To have access to and use of all files, records, and data of the commission or the counties available to any other attorney representing parties in a proceeding before the commission or the counties;
(3) In any proceeding in which he or she has participated as a party, to seek review of any determination, finding, or order of the commission or the counties, or of any hearing examiner designated by the commission or the counties, in the name of the state or its citizens;
(4) To prepare and issue reports, recommendations, and proposed orders to the commission, the Governor, and the Legislature on any matter or subject within the jurisdiction of the commission, and to make such recommendations as he or she deems appropriate for legislation relative to commission procedures, rules, jurisdiction, personnel, and functions; and
(5) To appear before other state agencies, federal agencies, and state and federal courts in connection with matters under the jurisdiction of the commission, in the name of the state or its citizens.
History.—s. 1, ch. 74-195; s. 1, ch. 77-174; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 536, ch. 95-148; s. 12, ch. 2000-350; s. 2, ch. 2001-145.
350.0612 Public Counsel; location.—The Public Counsel shall maintain his or her office in Leon County on the premises of the commission or, if suitable space there cannot be provided, at such other place convenient to the offices of the commissioners as will enable him or her to carry out expeditiously the duties and functions of his or her office.
History.—s. 1, ch. 74-195; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 537, ch. 95-148.
350.0613 Public Counsel; employees; receipt of pleadings.—The committee may authorize the Public Counsel to employ clerical and technical assistants whose qualifications, duties, and responsibilities the committee shall from time to time prescribe. The committee may from time to time authorize retention of the services of additional attorneys or experts to the extent that the best interests of the people of the state will be better served thereby, including the retention of expert witnesses and other technical personnel for participation in contested proceedings before the commission. The commission shall furnish the Public Counsel with copies of the initial pleadings in all proceedings before the commission, and if the Public Counsel intervenes as a party in any proceeding he or she shall be served with copies of all subsequent pleadings, exhibits, and prepared testimony, if used. Upon filing notice of intervention, the Public Counsel shall serve all interested parties with copies of such notice and all of his or her subsequent pleadings and exhibits.
History.—s. 1, ch. 74-195; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 538, ch. 95-148.
350.0614 Public Counsel; compensation and expenses.—
(1) The salaries and expenses of the Public Counsel and his or her employees shall be allocated by the committee only from moneys appropriated to the Public Counsel by the Legislature.
(2) The Legislature declares and determines that the Public Counsel is under the legislative branch of government within the intention of the legislation as expressed in chapter 216, and no power shall be in the Executive Office of the Governor or its successor to release or withhold funds appropriated to it, but the same shall be available for expenditure as provided by law.
(3) Neither the Executive Office of the Governor nor the Department of Management Services or its successor shall have power to determine the number, or fix the compensation, of the employees of the Public Counsel or to exercise any manner of control over them.
1(4) Notwithstanding subsection (1), the operating budget, as approved jointly by the President of the Senate and the Speaker of the House of Representatives from the moneys appropriated to the Public Counsel by the Legislature, constitutes the allocation under which the Public Counsel will manage the duties of his or her office. The Public Counsel:
(a) Shall submit an annual budget request to the Legislature in the format, detail, and schedule determined by the President of the Senate and the Speaker of the House of Representatives.
(b) May employ technical and clerical personnel and retain additional counsel and experts, including expert witnesses. In employing such personnel, retaining additional counsel and experts, and exercising all other administrative duties of the office, the Public Counsel must follow applicable provisions of the most recent version of the Joint Policies and Procedures of the Presiding Officers. Any guidance for administrative issues not addressed by the Joint Policies and Procedures of the Presiding Officers requires consultation and joint agreement of the President of the Senate and the Speaker of the House of Representatives.
This subsection expires July 1, 2022.
History.—s. 1, ch. 74-195; s. 120, ch. 79-190; s. 2, ch. 81-318; s. 6, ch. 87-50; s. 121, ch. 92-279; s. 55, ch. 92-326; s. 539, ch. 95-148; s. 7, ch. 2005-132; s. 36, ch. 2008-227; s. 30, ch. 2011-34; s. 71, ch. 2021-37.
1Note.——Section 71, ch. 2021-37, added subsection (4) “[i]n order to implement Specific Appropriation 2675 of the 2021-2022 General Appropriations Act.”
350.111 “Regulated company” defined.—As used in ss. 350.111-350.117 and ss. 350.121-350.128, “regulated company” means any public utility as defined in s. 366.02 or any person holding a valid and current certificate from the commission under chapter 351, chapter 364, chapter 365, or chapter 367.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 57, ch. 95-143.
350.113 Florida Public Service Regulatory Trust Fund; moneys to be deposited therein.—
(1) There is hereby created in the State Treasury a special fund to be designated as the “Florida Public Service Regulatory Trust Fund” which shall be used in the operation of the commission in the performance of the various functions and duties required of it by law.
(2) All fees, licenses, and other charges collected by the commission shall be deposited in the State Treasury to the credit of the Florida Public Service Regulatory Trust Fund to be used in the operation of the commission as authorized by the Legislature; however, penalties and interest assessed and collected by the commission shall not be deposited in the trust fund but shall be deposited in the General Revenue Fund. The Florida Public Service Regulatory Trust Fund shall be subject to the service charge imposed pursuant to chapter 215.
(3) Each regulated company under the jurisdiction of the commission, which company was in operation for the preceding 6-month period, shall pay to the commission within 30 days following the end of each 6-month period a fee based upon the gross operating revenues for such period. The fee shall, to the extent practicable, be related to the cost of regulating such type of regulated company. Differences, if any, between the amount paid in any 6-month period and the amount actually determined by the commission to be due shall, upon notification by the commission, be immediately paid or refunded. Each regulated company which is subject to the jurisdiction of the commission, but which did not operate under the commission’s jurisdiction during the entire preceding 6-month period, shall, within 30 days after the close of the first 6-month period during which it commenced operations under, or became subject to, the jurisdiction of the commission, pay to the commission the prescribed fee based upon its gross operating revenues derived from intrastate business during those months or parts of months in which the regulated company did operate during such 6-month period. In no event shall payments under this section be less than $25 annually.
(4) The commission shall provide each regulated company with written notice of the date that payment of the fee is due at least 45 days prior to such date. If any regulated company fails to pay the required fee by such date, the commission shall estimate the amount of fee due from such information as it may be able to obtain from any source and shall add 5 percent of such amount to the fee as a penalty if the failure is for not more than 30 days, with an additional 5 percent for each additional 30 days or fraction thereof during the time in which the failure continues, not to exceed a total penalty of 25 percent. The commission shall collect the fee and penalty, plus interest and all costs of collection, from the regulated company. However, no penalty shall be added to the fee if a return is made and the fee is paid before the date fixed in the notice given by the commission.
(5) The commission, for good cause shown by written request, may extend for a period not to exceed 30 days the time for paying any fee or for filing any report related thereto. If an extension is granted, there shall be collected a charge of 0.75 percent of the fee to be remitted for an extension of 15 days or less, or a charge of 1.5 percent of the fee for an extension of more than 15 days. No other penalty or interest shall be collected if such fee is remitted within the extension time granted. In lieu of paying the interest charge imposed by this subsection, a regulated company may remit an estimated amount of fee by the 30th day following a 6-month period. Any regulated company which remits an estimated fee payment by such date shall be granted a 30-day extension period in which to file and remit the actual fee due without the interest charge provided hereunder being imposed, unless the estimated fee payment remitted is less than 90 percent of the actual fee due for such period.
(6) All moneys in the Florida Public Service Regulatory Trust Fund shall be for the use of the commission in the performance of its functions and duties as provided by law, subject to the fiscal and budgetary provisions of general law.
(7) Notwithstanding the provisions of s. 350.111, as used in this section only, the term “regulated company” includes any rural electric cooperative or municipal electric utility.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 15, ch. 83-339; s. 6, ch. 87-50; s. 45, ch. 91-221; s. 6, ch. 2006-214; s. 71, ch. 2020-2.
350.115 Uniform systems and classifications of accounts.—The commission may prescribe by rule uniform systems and classifications of accounts for each type of regulated company and approve or establish adequate, fair, and reasonable depreciation rates and charges.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 6, ch. 2003-5.
350.117 Reports; audits.—
(1) The commission may require such regular or emergency reports, including, but not limited to, financial reports, as the commission deems necessary to fulfill its obligations under the law.
(2) The commission may perform management and operation audits of any regulated company. The commission may consider the results of such audits in establishing rates; however, the company shall not be denied due process as a result of the use of any such management or operation audit.
(3) As used in this section, “management and operation audit” means an appraisal, by a public accountant or other professional person, of management performance, including a testing of adherence to governing policy and profit capability; adequacy of operating controls and operating procedures; and relations with employees, customers, the trade, and the public generally.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 7, ch. 2006-214.
350.121 Commission inquiries; confidentiality of business material.—If the commission undertakes an inquiry, any records, documents, papers, maps, books, tapes, photographs, files, sound recordings, or other business material, regardless of form or characteristics, obtained by the commission incident to the inquiry are considered confidential and exempt from s. 119.07(1) while the inquiry is pending. If at the conclusion of an inquiry the commission undertakes a formal proceeding, any matter determined by the commission or by a judicial or administrative body, federal or state, to be trade secrets or proprietary confidential business information coming into its possession pursuant to such inquiry shall be considered confidential and exempt from s. 119.07(1). Such material may be used in any administrative or judicial proceeding so long as the confidential or proprietary nature of the material is maintained.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50.
350.123 Oaths; depositions; protective orders.—The commission may administer oaths, take depositions, issue protective orders, issue subpoenas, and compel the attendance of witnesses and the production of books, papers, documents, and other evidence necessary for the purpose of any investigation or proceeding. Challenges to, and enforcement of, such subpoenas and orders shall be handled as provided in s. 120.569.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 91, ch. 96-410.
350.124 Compelled testimony.—If any person called to testify in a commission proceeding shall refuse to testify because of a claim of possible self-incrimination, the commission, after consultation with the appropriate state attorney, may apply to the chief judge of the appropriate judicial circuit for a judicial grant of immunity ordering the testimony of such person notwithstanding his or her objection, but in such case no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal prosecution.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 540, ch. 95-148.
350.125 Administrative law judges.—Any provision of law to the contrary notwithstanding, the commission shall utilize administrative law judges of the Division of Administrative Hearings of the Department of Management Services to conduct hearings of the commission not assigned to members of the commission.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 122, ch. 92-279; s. 55, ch. 92-326; s. 92, ch. 96-410.
350.127 Penalties; rules; execution of contracts.—
(1) The commission may impose upon any regulated company that is found to have refused to comply with or willfully violated any lawful rule or order of the commission, or any statute administered by the commission, a penalty for each such offense of not more than $5,000, to be fixed, imposed, and collected by the commission, or the commission may, for any such violation, amend, suspend, or revoke any certificate issued by the commission. Each day that such refusal or violation continues shall constitute a separate offense. Each penalty shall be a lien upon the real and personal property of the regulated company, enforceable by the commission as a statutory lien under chapter 85. The net proceeds from the enforcement of any such lien shall be deposited in the General Revenue Fund.
(2) The commission is authorized to adopt, by affirmative vote of a majority of the commission, rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of law conferring duties upon it.
(3) The commission may designate one or more employees to execute contracts on behalf of the commission.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50; s. 71, ch. 98-200.
350.128 Judicial review.—
(1) As authorized by s. 3(b)(2), Art. V of the State Constitution, the Supreme Court shall, upon petition, review any action of the commission relating to rates or service of utilities providing electric, gas, or telephone service. The District Court of Appeal, First District, shall, upon petition, review any other action of the commission.
(2) Notice of such review shall be given by the petitioner to all parties who entered appearances of record in the proceedings before the commission in which the order sought to be reviewed was made.
(3) Such parties may file briefs in support of their interests, as such interests may appear, within the time and in the manner provided by the Florida Rules of Appellate Procedure.
(4) Such parties shall be entitled as a matter of right to make oral argument in support of their interests, as such interests may appear, in any case in which oral argument is granted by the court on the application of the petitioner or the respondent.
History.—ss. 3, 6, ch. 80-289; ss. 2, 3, ch. 81-318; s. 6, ch. 87-50.
350.81 Communications services offered by governmental entities.—
(1) As used in this section, the term:
(a) “Advanced service” means high-speed-Internet-access-service capability in excess of 200 kilobits per second in the upstream or the downstream direction, including any service application provided over the high-speed-access service or any information service as defined in 47 U.S.C. s. 153(20).
(b) “Cable service” has the same meaning as in 47 U.S.C. s. 522(6).
(c) “Communications services” includes any “advanced service,” “cable service,” or “telecommunications service” and shall be construed in the broadest sense.
(d) “Enterprise fund” means a separate fund to account for the operation of communications services by a local government, established and maintained in accordance with generally accepted accounting principles as prescribed by the Governmental Accounting Standards Board.
(e) “Governmental entity” means any political subdivision as defined in s. 1.01, including any county, municipality, special district, school district, utility authority or other authority or any instrumentality, agency, unit or department thereof. The term does not include an independent special district created before 1970 which has been granted express legislative authority to provide a communications service and which does not sell a communications service outside its district boundaries.
(f) “Provide,” “providing,” “provision,” or “provisioning” means offering or supplying a communications service for a fee or other consideration to a person, including any portion of the public or private provider, but does not include service by an entity to itself or to any other governmental entity.
(g) “Subscriber” means a person who receives a communications service.
(h) “Telecommunications services” means the transmission of signs, signals, writing, images, sounds, messages, data, or other information of the user’s choosing, by wire, radio, light waves, or other electromagnetic means, without change in the form or content of the information as sent and received by the user and regardless of the facilities used, including, without limitation, wireless facilities.
(2)(a) A governmental entity that proposes to provide a communications service shall hold no less than two public hearings, which shall be held not less than 30 days apart. At least 30 days before the first of the two public hearings, the governmental entity must give notice of the hearing in the predominant newspaper of general circulation in the area considered for service. At least 40 days before the first public hearing, the governmental entity must electronically provide notice to the Department of Revenue and the Public Service Commission, which shall post the notice on the department’s and the commission’s website to be available to the public. The Department of Revenue shall also send the notice by United States Postal Service to the known addresses for all dealers of communications services registered with the department under chapter 202 or provide an electronic notification, if the means are available, within 10 days after receiving the notice. The notice must include the time and place of the hearings and must state that the purpose of the hearings is to consider whether the governmental entity will provide communications services. The notice must include, at a minimum, the geographic areas proposed to be served by the governmental entity and the services, if any, which the governmental entity believes are not currently being adequately provided. The notice must also state that any dealer who wishes to do so may appear and be heard at the public hearings.
(b) At a public hearing required by this subsection, a governmental entity must, at a minimum, consider:
1. Whether the service that is proposed to be provided is currently being offered in the community and, if so, whether the service is generally available throughout the community.
2. Whether a similar service is currently being offered in the community and, if so, whether the service is generally available throughout the community.
3. If the same or similar service is not currently offered, whether any other service provider proposes to offer the same or a similar service and, if so, what assurances that service provider is willing or able to offer regarding the same or similar service.
4. The capital investment required by the government entity to provide the communications service, the estimated realistic cost of operation and maintenance and, using a full cost-accounting method, the estimated realistic revenues and expenses of providing the service and the proposed method of financing.
5. The private and public costs and benefits of providing the service by a private entity or a governmental entity, including the affect on existing and future jobs, actual economic development prospects, tax-base growth, education, and public health.
(c) At one or more of the public hearings under this subsection, the governmental entity must make available to the public a written business plan for the proposed communications service venture containing, at a minimum:
1. The projected number of subscribers to be served by the venture.
2. The geographic area to be served by the venture.
3. The types of communications services to be provided.
4. A plan to ensure that revenues exceed operating expenses and payment of principal and interest on debt within 4 years.
5. Estimated capital and operational costs and revenues for the first 4 years.
6. Projected network modernization and technological upgrade plans, including estimated costs.
(d) After making specific findings regarding the factors in paragraphs (b) and (c), the governmental entity may authorize providing a communications service by a majority recorded vote and by resolution, ordinance, or other formal means of adoption.
(e) The governing body of a governmental entity may issue one or more bonds to finance the capital costs for facilities to provide a communications service. However:
1. A governmental entity may only pledge revenues in support of the issuance of any bond to finance providing a communications service:
a. Within the county in which the governmental entity is located;
b. Within an area in which the governmental entity provides electric service outside its home county under an electric service territorial agreement approved by the Public Service Commission before the effective date of this act; or
c. If the governmental entity is a municipality or special district, within its corporate limits or in an area in which the municipality or special district provides water, wastewater, electric, or natural gas service, or within an urban service area designated in a comprehensive plan, whichever is larger, unless the municipality or special district obtains the consent by formal action of the governmental entity within the boundaries of which the municipality or special district proposes to provide service. For consent to be effective, any governmental entity from which consent is sought shall be located within the county in which the governmental entity is located or that county.
2. Revenue bonds issued in order to finance providing a communications service are not subject to the approval of the electors if the revenue bonds mature within 15 years. Revenue bonds issued to finance providing a communications service that does not mature within 15 years must be approved by the electors. The election must be conducted as specified in chapter 100.
(f) A governmental entity providing a communications service may not price any service below the cost of providing the service by subsidizing the communications service with moneys from rates paid by subscribers of a noncommunications services utility or from any other revenues. The cost standard for determining cross-subsidization is whether the total revenue from the service is less than the total long-run incremental cost of the service. Total long-run incremental cost means service-specific volume and nonvolume-sensitive costs.
(g) A governmental entity providing a communications service must comply with the requirements of s. 218.32 and shall keep separate and accurate books and records, maintained in accordance with generally accepted accounting principles, of a governmental entity’s communication service, and they shall be made available for any audits of the books and records conducted under applicable law. To facilitate equitable distribution of indirect costs, a local government shall develop and follow a cost-allocation plan, which is a procedure for allocating direct and indirect costs and which is generally developed in accordance with OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Government, published by the United States Office of Management and Budget.
(h) The governmental entity shall establish an enterprise fund to account for its operation of communications services.
(i) The governmental entity shall adopt separate operating and capital budgets for its communications services.
(j) A governmental entity may not use its powers of eminent domain under chapter 73 solely or primarily for the purpose of providing a communications service.
(k) The governmental entity shall conduct an annual review at a formal public meeting to consider the progress the governmental entity is making toward reaching its business plan goals and objectives for providing communication services. At the public meeting the governmental entity shall review the related revenues, operating expenses, and payment of interest on debt.
(l) If, after 4 years following the initiation of the provision of communications services by a governmental entity or 4 years after the effective date of this act, whichever is later, revenues do not exceed operating expenses and payment of principal and interest on the debt for a governmental entity’s provision of communications services, no later than 60 days following the end of the 4-year period a governmental entity shall hold a public hearing at which the governmental entity shall do at least one of the following:
1. Approve a plan to cease providing communications services;
2. Approve a plan to dispose of the system the governmental entity is using to provide communications services and, accordingly, to cease providing communications services;
3. Approve a plan to create a partnership with a private entity in order to achieve operations in which revenues exceed operating expenses and payment of principal and interest on debt; or
4. Approve the continuing provision of communications services by a majority vote of the governing body of the governing authority.
(3)(a) A governmental entity that provides a cable or video service shall comply with the Cable Communications Policy Act of 1984, 47 U.S.C. ss. 521 et seq., the regulations issued by the Federal Communications Commission under the Cable Communications Policy Act of 1984, 47 U.S.C. ss. 521 et seq., and all applicable state and federal rules and regulations, including, but not limited to, those provisions of chapters 202, 212, 337, and 610 that apply to a provider of the services.
(b) A governmental entity that provides a telecommunications service or advanced service must comply, if applicable, with chapter 364 and rules adopted by the Public Service Commission; chapter 166; and all applicable state and federal rules and regulations, including, but not limited to, those provisions of chapters 202, 212, and 337 which apply to a provider of the services.
(c) A governmental entity may not exercise its power or authority in any area, including zoning or land use regulation, to require any person, including residents of a particular development, to use or subscribe to any communication service of a governmental entity.
(d) A governmental entity shall apply its ordinances, rules, and policies, and exercise any authority under state or federal laws, including, but not limited to, those relating to the following subjects and without discrimination as to itself when providing a communications service or to any private provider of communications services:
1. Access to public rights-of-way; and
2. Permitting, access to, use of, and payment for use of governmental entity-owned poles. The governmental entity is subject to the same terms, conditions, and fees, if any, for access to government-owned poles which the governmental entity applies to a private provider for access.
(4)(a) If a governmental entity was providing, as of April 1, 2005, advanced services, cable services, or telecommunications services, then it is not required to comply with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k) in order to continue to provide advanced services, cable services, or telecommunications services, respectively, but it must comply with and be subject to all other provisions of this section.
(b) If a governmental entity, as of April 1, 2005, had issued debt pledging revenues from an advanced service, cable service, or telecommunications service, then it is not required to comply with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k) in order to provide advanced services, cable services, or telecommunications services, respectively, but it must comply with and be subject to all other provisions of this section.
(c) If a governmental entity, as of April 1, 2005, has purchased equipment specifically for the provisioning of advanced service, cable service, or telecommunication service, and, as of May 6, 2005, has a population of less than 7,500, and has authorized by formal action the providing of an advanced service, cable service, or telecommunication service, then it is not required to comply with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k) in order to provide advanced service, cable service, or telecommunication service, respectively, but it must comply with and be subject to all other provisions of this section.
This subsection does not relieve a governmental entity from complying with subsection (5).
(5) Notwithstanding s. 542.235 or any other law, a governmental entity that provides a communications service is subject to the same prohibitions applicable to private providers under ss. 542.18 and 542.19 as it relates to providing a communications service. This section does not limit the availability to any party of any remedy or defense under state or federal anti-trust laws.
(6) To ensure the safe and secure transportation of passengers and freight through an airport facility, as defined in s. 159.27(17), an airport authority or other governmental entity that provides or is proposing to provide communications services only within the boundaries of its airport layout plan, as defined in s. 333.01(6), to subscribers which are integral and essential to the safe and secure transportation of passengers and freight through the airport facility, is exempt from this section. An airport authority or other governmental entity that provides or is proposing to provide shared-tenant service under 1s. 364.339, but not dial tone enabling subscribers to complete calls outside the airport layout plan, to one or more subscribers within its airport layout plan which are not integral and essential to the safe and secure transportation of passengers and freight through the airport facility is exempt from this section. An airport authority or other governmental entity that provides or is proposing to provide communications services to one or more subscribers within its airport layout plan which are not integral and essential to the safe and secure transportation of passengers and freight through the airport facility, or to one or more subscribers outside its airport layout plan, is not exempt from this section. By way of example and not limitation, the integral, essential subscribers may include airlines and emergency service entities, and the nonintegral, nonessential subscribers may include retail shops, restaurants, hotels, or rental car companies.
(7) This section does not alter or affect any provision in the charter, code, or other governing authority of a governmental entity that imposes additional or different requirements on provision of communications service by a governmental entity. Any such provisions shall apply in addition to the applicable provisions in this section.
History.—s. 8, ch. 2005-132; s. 8, ch. 2007-29; s. 14, ch. 2016-209; s. 77, ch. 2016-239.