House Bill 3291

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    Florida House of Representatives - 1998                HB 3291

        By Representatives Valdes, Garcia, Morse and Barreiro






  1                      A bill to be entitled

  2         An act relating to public rights-of-way;

  3         creating s. 337.4011, F.S., creating the

  4         "Telecommunications Rights-of-Way Act";

  5         creating s. 337.4012, F.S., providing

  6         legislative findings and intent; creating s.

  7         337.4013, F.S., providing definitions; creating

  8         s. 337.4014, F.S., providing requirements with

  9         respect to consent necessary for the use of

10         streets and public rights-of-way; creating s.

11         337.4015, F.S., providing for permissible

12         taxes, fees, and charges; providing an

13         effective date.

14

15  Be It Enacted by the Legislature of the State of Florida:

16

17         Section 1.  Section 337.4011, Florida Statutes, is

18  created to read:

19         337.4011  Short title.--Sections 337.4011-337.4015 may

20  be cited as the "Telecommunications Rights-of-Way Act."

21         Section 2.  Section 337.4012, Florida Statutes, is

22  created to read:

23         337.4012  Legislative findings and intent.--

24         (1)  The Legislature finds that because the public

25  rights-of-way are dedicated to and held on a nonproprietary

26  basis in trust for use of the public, their use by

27  telecommunications companies is consistent with the policies

28  of the state expressed in chapter 364 and is appropriate for

29  the public good.

30         (2)  It is the intent of the Legislature that nothing

31  in this act shall be construed to alter or diminish the

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  1  authority of local government to lawfully exercise their

  2  police powers within their boundaries, and, subject to such

  3  reservation of authority, that:

  4         (a)  The construction, maintenance, operation,

  5  oversight, and regulation of telecommunications providers and

  6  their facilities is a matter of statewide concern and

  7  interest;

  8         (b)  Telecommunications providers operating under the

  9  authority of the Federal Communications Commission or the

10  Florida Public Service Commission pursuant to chapter 364,

11  require no additional authorization from any local government

12  of the state to conduct business within a given geographic

13  area and that no such local government has jurisdiction to

14  regulate telecommunications providers based upon the content,

15  nature, or type of telecommunications service or signal they

16  provide except to the extent expressly granted by federal or

17  state legislation; and

18         (c)  As provided for in s. 362.01, telecommunications

19  providers have a right to occupy and utilize the public

20  rights-of-way for the efficient conduct of their business.

21         (3)  It is further the intent of the Legislature that,

22  in administering the public rights-of-way, no local government

23  shall require a telecommunications provider to pay for the use

24  of the rights-of-way. However, a local government having the

25  authority to do so may recover its costs of managing the

26  public rights-of-way as provided herein.

27         Section 3.  Section 337.4013, Florida Statutes, is

28  created to read:

29         337.4013  Definitions.--

30         (1)  "Local government" means an authority that has

31  control of public roads, streets, and rights-of-way.

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  1         (2)  "Management costs" means the actual costs a local

  2  government incurs in managing its public rights-of-way and

  3  includes the costs of issuing and processing rights-of-way

  4  construction permits, inspecting job sites and restoration

  5  projects, determining the adequacy of rights-of-way

  6  restoration, restoring work inadequately performed after

  7  providing notice and the opportunity to correct the work, and

  8  revoking rights-of-way permits.  Management costs do not

  9  include payment for use of the public rights-of-way, attorney

10  and consultant fees and costs associated with ordinance, fee,

11  or cost development, or the costs and fees of litigation

12  relating to rights-of-way.

13         (3)  "Public streets and rights-of-way" or

14  "rights-of-way" includes all roads, streets, and alleys and

15  all other dedicated rights-of-way and utility easements of the

16  state or any of its local governments, whether located within

17  the boundaries of a local government or otherwise.

18         (4)  "Telecommunications provider" or "provider" has

19  the same meaning as "telecommunications company" as defined in

20  s. 364.02(12).

21         Section 4.  Section 337.4014, Florida Statutes, is

22  created to read:

23         337.4014  Consent necessary to use of streets.--

24         (1)  A telecommunications provider that, on or before

25  the effective date of this section, either has obtained

26  permission of the incorporated city or town having express

27  authority to require such permission or is lawfully occupying

28  public streets and rights-of-way shall not be required to

29  obtain additional or continued consent to continue such lawful

30  occupation of the public streets and rights-of-way.

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  1         (2)  Where expressly required by statute, permission to

  2  occupy public streets and rights-of-way within an incorporated

  3  city or town is a function of and may only be based upon a

  4  lawful exercise of the police power.

  5         (3)  Telecommunications providers require no additional

  6  authorization from any local government of the state to

  7  conduct business.

  8         Section 5.  Section 337.4015, Florida Statutes, is

  9  created to read:

10         337.4015  Permissible taxes, fees, and charges.--

11         (1)  No local government shall levy a tax, fee, or

12  charge for any right or privilege of engaging in a

13  telecommunications business other than an occupational license

14  tax pursuant to chapter 205.

15         (2)(a)  A local government may recover its

16  rights-of-way management costs by imposing a fee for each

17  rights-of-way permit. A local government may not recover from

18  a telecommunications provider costs caused by another entity's

19  activity in the rights-of-way.

20         (b)  Fees imposed by a local government on

21  telecommunications providers must be:

22         1.  Limited to the local government's management costs;

23         2.  Based on an allocation among all users of the

24  public rights-of-way, including the local government itself,

25  which shall reflect the proportionate costs imposed on the

26  local government by each of the various types of uses of the

27  public rights-of-way;

28         3.  Imposed on a competitively neutral basis;

29         4.  Imposed in a manner so that aboveground uses of

30  public rights-of-way do not bear costs incurred by the local

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    Florida House of Representatives - 1998                HB 3291

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  1  government to regulate underground uses of public

  2  rights-of-way; and

  3         5.  Within the limits of s. 337.401.

  4         (c)  In any controversy concerning the appropriateness

  5  of a fee or charge, the local government shall have the burden

  6  of proving that the fee or charge is reasonably related to the

  7  direct costs incurred by such local government.

  8         (d)  The rights, duties, and obligations regarding the

  9  use of the public rights-of-way imposed under this section

10  must be applied to all users of the public rights-of-way,

11  including local government.

12         (3)  In managing the public rights-of-way and in

13  imposing fees under this section, no local government may

14  require a telecommunications provider to pay for the use of

15  the public streets or rights-of-way.

16         (4)  Taxes, fees, and charges imposed shall not be

17  collected through the provision of in-kind services or

18  facilities as a condition of permission to occupy streets or

19  rights-of-way.

20         (5)  Nothing in ss. 337.4011-337.4015 shall be

21  construed to grant a local government authority to impose any

22  fee not authorized by law in effect on December 1, 1997.

23         Section 6.  This act shall take effect upon becoming a

24  law.

25

26            *****************************************

27                          HOUSE SUMMARY

28
      Creates the "Telecommunications Rights-of-Way Act" to
29    provide for the regulation of access to public streets
      and public rights-of-way in incorporated cities and towns
30    by telecommunications companies.  See bill for details.

31

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