Senate Bill 1008c1

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    Florida Senate - 1999                           CS for SB 1008

    By the Committee on Regulated Industries





    315-2058C-99

  1                      A bill to be entitled

  2         An act relating to telecommunications; amending

  3         s. 364.025, F.S.; revising legislative intent;

  4         extending time for establishment of permanent

  5         universal service mechanism; providing

  6         limitations; deleting obsolete provisions;

  7         providing for a study; creating s. 364.341,

  8         F.S.; providing legislative intent,

  9         definitions, and standards; prohibiting

10         exclusionary contracts; limiting applicability

11         to certain tenants; prohibiting compensation of

12         landlords under certain circumstances;

13         prohibiting certain exclusionary contracts;

14         creating a civil cause of action; providing

15         effective dates.

16

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

18

19         Section 1.  Section 364.025, Florida Statutes, 1998

20  Supplement, is amended to read:

21         364.025  Universal service.--

22         (1)  For the purposes of this section, the term

23  "universal service" means an evolving level of access to

24  telecommunications services that, taking into account advances

25  in technologies, services, and market demand for essential

26  services, the commission determines should be provided at

27  just, reasonable, and affordable flat rates for the first

28  access line of residential and business to customers,

29  including those in rural, economically disadvantaged, and

30  high-cost areas.  It is the intent of the Legislature that

31  universal service objectives of providing affordable basic

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    Florida Senate - 1999                           CS for SB 1008
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  1  local telecommunications service to low-income customers and

  2  customers located in high-cost areas be maintained after the

  3  local exchange market is opened to competitively provided

  4  services.  It is also the intent of the Legislature that the

  5  interim mechanism for maintaining the universal service

  6  objectives established by the commission in Docket No.

  7  950696-TP remain in effect until January 1, 2001, and during

  8  this transition period the ubiquitous nature of the local

  9  exchange telecommunications companies be used to satisfy these

10  objectives. Until January 1, 2001 For a period of 4 years

11  after January 1, 1996, each local exchange telecommunications

12  company shall be required to furnish basic local exchange

13  telecommunications service within a reasonable time period to

14  any person requesting such service within the company's

15  service territory. Each local exchange telecommunications

16  company shall be relieved of its obligations as a carrier of

17  last resort, effective January 1, 2001, if in full compliance

18  with s. 214(e)(4) of the Communications Act of 1934, as

19  amended by the Telecommunications Act of 1996, 47 U.S.C. 214.

20         (2)  The Legislature finds that each telecommunications

21  company should contribute its fair share to the support of the

22  universal service objectives and carrier-of-last-resort

23  obligations. For a transitional period not to exceed January

24  1, 2000, an interim mechanism for maintaining universal

25  service objectives and funding carrier-of-last-resort

26  obligations shall be established by the commission, pending

27  the implementation of a permanent mechanism.  The interim

28  mechanism shall be applied in a manner that ensures that each

29  alternative local exchange telecommunications company

30  contributes its fair share to the support of universal service

31  and carrier-of-last-resort obligations.  The interim mechanism

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    Florida Senate - 1999                           CS for SB 1008
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  1  applied to each alternative local exchange telecommunications

  2  company shall reflect a fair share of the local exchange

  3  telecommunications company's recovery of investments made in

  4  fulfilling its carrier-of-last-resort obligations, and the

  5  maintenance of universal service objectives. The commission

  6  shall ensure that the interim mechanism does not impede the

  7  development of residential consumer choice or create an

  8  unreasonable barrier to competition.  In reaching its

  9  determination, the commission shall not inquire into or

10  consider any factor that is inconsistent with s.

11  364.051(1)(c).  The costs and expenses of any government

12  program or project required in part II of this chapter shall

13  not be recovered under this section.

14         (3)  If In the event any local exchange

15  telecommunications company party, prior to January 1, 2001

16  2000, believes that circumstances have changed substantially

17  to warrant a change in the interim mechanism, that local

18  exchange telecommunications company party may petition the

19  commission for a change, but the commission shall grant such

20  petition only after an opportunity for a hearing and a

21  compelling showing of changed circumstances, including that

22  the provider's customer population includes as many

23  residential as business customers.  The commission shall act

24  on any such petition within 120 days. The costs and expenses

25  of any government program or project required in part II of

26  this chapter shall not be recovered under this subsection.

27         (4)(a)  On or before July 1, 2000 Prior to the

28  expiration of this 4-year period, the Legislature shall

29  establish a specific, predictable, and sufficient permanent

30  universal service mechanism that operates in a competitively

31  neutral manner. The mechanism shall take effect on or before

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    Florida Senate - 1999                           CS for SB 1008
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  1  January 1, 2001 upon the effective date of which any interim

  2  recovery mechanism for universal service objectives or

  3  carrier-of-last-resort obligations imposed on alternative

  4  local exchange telecommunications companies shall terminate.

  5         (b)  To assist the Legislature in establishing a

  6  permanent universal service mechanism, the commission, by

  7  February 15, 1999, shall determine and report to the President

  8  of the Senate and the Speaker of the House of Representatives

  9  the total forward-looking cost, based upon the most recent

10  commercially available technology and equipment and generally

11  accepted design and placement principles, of providing basic

12  local telecommunications service on a basis no greater than a

13  wire center basis using a cost proxy model to be selected by

14  the commission after notice and opportunity for hearing.

15         (c)  In determining the cost of providing basic local

16  telecommunications service for small local exchange

17  telecommunications companies, which serve less than 100,000

18  access lines, the commission shall not be required to use the

19  cost proxy model selected pursuant to paragraph (b) until a

20  mechanism is implemented by the Federal Government for small

21  companies, but no sooner than January 1, 2001. The commission

22  shall calculate a small local exchange telecommunications

23  company's cost of providing basic local telecommunications

24  services based on one of the following options:

25         1.  A different proxy model; or

26         2.  A fully distributed allocation of embedded costs,

27  identifying high-cost areas within the local exchange area the

28  company serves and including all embedded investments and

29  expenses incurred by the company in the provision of universal

30  service. Such calculations may be made using fully distributed

31  costs consistent with 47 C.F.R. ss. 32, 36, and 64. The

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    Florida Senate - 1999                           CS for SB 1008
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  1  geographic basis for the calculations shall be no smaller than

  2  a census block group.

  3         (d)  The commission, by February 15, 1999, shall

  4  determine and report to the President of the Senate and the

  5  Speaker of the House of Representatives the amount of support

  6  necessary to provide residential basic local

  7  telecommunications service to low-income customers. For

  8  purposes of this section, low-income customers are customers

  9  who qualify for Lifeline service as defined in s. 364.10(2).

10         (5)  There shall be no increase in basic local

11  telecommunications service rates except as provided by this

12  chapter. Local exchange telecommunications companies may not

13  recover universal service fund contributions through an

14  explicit end-user or line-item surcharge.

15         (6)(5)  After January 1, 2001, January 1, 2000, an

16  alternative local exchange telecommunications company may

17  petition the commission to become a the universal service

18  provider and carrier of last resort in areas requested to be

19  served by that alternative local exchange telecommunications

20  company.  Upon petition of an alternative local exchange

21  telecommunications company, the commission shall have 120 days

22  to vote on granting in whole or in part or denying the

23  petition of the alternative local exchange company.  The

24  commission may establish the alternative local exchange

25  telecommunications company as a the universal service provider

26  and carrier of last resort, provided that the commission first

27  determines that the alternative local exchange

28  telecommunications company will provide high-quality, reliable

29  service.  In the order establishing the alternative local

30  exchange telecommunications company as a the universal service

31  provider and carrier of last resort, the commission shall set

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    Florida Senate - 1999                           CS for SB 1008
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  1  the period of time in which such company must meet those

  2  objectives and obligations and shall set up any mechanism

  3  needed to aid such company in carrying out these duties.

  4         Section 2.  To assist the Legislature in establishing a

  5  permanent universal service mechanism, the Florida Public

  6  Service Commission, by February 15, 2000, shall recommend to

  7  the President of the Senate and the Speaker of the House of

  8  Representatives what the commission determines, after notice

  9  and opportunity for hearing, to be a specific, predictable,

10  and sufficient mechanism for providing universal service. In

11  making its recommendation, the commission shall consider the

12  following items listed in subsections (1) through (10) and

13  make a specific finding as to whether an item should be

14  included in a universal service mechanism or make a specific

15  finding as to the manner in which an item should be included.

16  If the commission determines that an item should be included

17  as a component of a mechanism, it shall state with specificity

18  the basis for its recommendation and the manner in which the

19  component should be included. If the commission determines

20  that an item should not be included as a component of a

21  mechanism, it shall state with specificity the basis for its

22  rejection of the item.  Any finding by the commission as to

23  the manner in which an item should be included in a mechanism

24  must be detailed and comprehensive. These items to be

25  considered are:

26         (1)  The requirements of the federal Telecommunications

27  Act of 1996 and any universal service support mechanism

28  established by the Federal Communications Commission.

29         (2)  Whether the universal service support mechanism

30  shall be based upon the costs determined by the commission in

31

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    Florida Senate - 1999                           CS for SB 1008
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  1  Docket No. 980696-TP and whether the cost determination shall

  2  be updated, as necessary, to reflect changes in cost inputs.

  3         (3)  Whether there shall be a revenue benchmark and how

  4  such revenue benchmark shall be defined.

  5         (4)  Whether the low-income support amount shall be

  6  determined by multiplying the number of customers subscribing

  7  to Lifeline service by the intrastate matching fund amount by

  8  12.

  9         (5)  The manner in which each telecommunications

10  company shall be assessed its share of the universal service

11  support.

12         (6)  Whether, and to what extent, the mechanism shall

13  include special provisions that address the service areas,

14  market conditions, information resources, or other

15  circumstances of small local exchange companies serving fewer

16  than 100,000 access lines.

17         (7)  The manner in which the local exchange company's

18  nonbasic service prices and access charges shall be changed to

19  reflect any explicit universal service support net of its

20  contributions to any universal service support mechanism.

21         (8)  How any explicit universal service mechanism shall

22  be administered and how any third-party administrator shall be

23  selected.

24         (9)  How a telecommunications company shall qualify to

25  receive any explicit universal service support.

26         (10)  Whether the status of competition based upon the

27  directives developed by the Federal Communications Commission

28  to open the local market to competition, which include

29  interconnection, network access, and resale, expedites the

30  need for the universal service fund.

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    Florida Senate - 1999                           CS for SB 1008
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  1  In making its recommendation, the commission may include an

  2  item not listed in subsections (1) through (10) if the

  3  commission first determines that it is a necessary component

  4  of a universal service mechanism as that mechanism is

  5  described in section 346.025(4), Florida Statutes. If the

  6  commission does recommend such an item, it shall state with

  7  specificity the basis for its determination and the manner in

  8  which it should be included in the mechanism.

  9         Section 3.  Effective October 1, 1999, section 364.341,

10  Florida Statutes, is created to read:

11         364.341  Public purpose; definitions; standards for

12  access to multitenant environments; prohibitions; regulations;

13  civil cause of action.--

14         (1)  The Legislature finds that an important public

15  purpose is achieved by providing access to tenants in

16  multitenant environments, public and private, nonresidential

17  and residential, for telecommunication companies seeking to

18  promote competition and choice in delivering telecommunication

19  services, while at the same time, balancing the private

20  property rights of landlords.

21         (2)  As used in this section, the term:

22         (a)  "Exclusionary contract" means an agreement between

23  a landlord and a telecommunications company in which the

24  telecommunications company is given exclusive access to the

25  landlord's property for the purpose of providing

26  telecommunications service.

27         (b)  "Multitenant environment" includes any type of

28  structure, ownership interest, or tenancy with multiple owners

29  or tenants except:

30         1.  Condominiums, as defined in s. 718.103.

31         2.  Cooperatives, as defined in s. 719.103.

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    Florida Senate - 1999                           CS for SB 1008
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  1         3.  Communities governed by a homeowners' association,

  2  as association is defined in s. 617.301.

  3         4.  Environments served by "call aggregators," as

  4  defined in F.A.C. 25-24.610.

  5         5.  A facility licensed in whole or in part as a

  6  nursing home facility or assisted-living facility under

  7  chapter 400 or a facility licensed in whole or in part to

  8  provide continuing care under chapter 651.

  9         6.  Housing for the elderly or disabled which is

10  financed or insured by the United States Department of Housing

11  and Urban Development pursuant to the National Housing Act, or

12  a similar federal program, or financed in whole or in part by

13  the State Apartment Incentive Loan Program pursuant to s.

14  420.507, or a similar state program.

15         (c)  "Landlord" means the owner or owners, the owner's

16  agent, assigns, or successor in interest, or the lessor.

17         (d)  "Tenant" means any person or entity legally

18  entitled to occupy a unit in a multitenant environment, but

19  does not include a tenant with a nonresidential rental

20  agreement of 13 months or less if the tenant has occupied the

21  premises for less than 13 months or a tenant with a

22  residential rental agreement of 13 months or less.

23         (3)  The following standards for access by

24  telecommunications companies to tenants in multitenant

25  environments shall be applied on a reasonable and

26  technologically neutral basis and all telecommunication

27  companies shall be provided generally comparable terms and

28  conditions for access:

29         (a)  Access shall be granted on reasonable,

30  technologically neutral, and generally comparable terms and

31  conditions.

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    Florida Senate - 1999                           CS for SB 1008
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  1         (b)  Landlords and telecommunications companies shall

  2  make every reasonable effort to negotiate terms and conditions

  3  for access, which may be evidenced by license, access, or

  4  similar customary agreements.

  5         (c)  After a tenant initiates a request to a

  6  telecommunications company for service and the

  7  telecommunications company or the tenant conveys a written

  8  request for such service to the landlord, the landlord and the

  9  telecommunications company shall comply with paragraph (b) in

10  a reasonable and timely manner.

11         (d)  A landlord may impose upon a telecommunications

12  company or tenant reasonable terms and conditions and charge

13  reasonable compensation to the telecommunications company or

14  tenant, including reasonable compensation for design,

15  installation, operation, maintenance, and removal of

16  telecommunications network equipment and facilities reasonably

17  necessary to provide telecommunications service to tenants.

18  However, a landlord may not charge a fee to the

19  telecommunications company solely for the privilege of

20  providing telecommunications service to a tenant in a

21  multitenant environment. The landlord shall offer generally

22  comparable terms, conditions, and compensation arrangements to

23  all similarly situated telecommunications companies.

24         (e)  A landlord may establish reasonable terms and

25  conditions with respect to the occupation, use, safety,

26  security, or aesthetics of its property.

27         (f)  A landlord may not deny a telecommunications

28  company access to space or conduit if that space or conduit is

29  sufficient to accommodate the facilities needed for access and

30  the installation and operation of the facilities would not

31  unreasonably interfere with the occupation, use, safety,

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    Florida Senate - 1999                           CS for SB 1008
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  1  security, or aesthetics of the property. A landlord may deny a

  2  telecommunications company access to its property where the

  3  space or conduit required for installation and operation of

  4  the facilities needed for access is not reasonably sufficient

  5  to accommodate the request or where the installation and

  6  operation would unreasonably interfere with the occupation,

  7  use, safety, security, or aesthetics of the property.

  8         (g)  This section does not abrogate the obligations of

  9  the carrier of last resort described in s. 364.025.

10         (4)  Exclusionary contracts entered into on or after

11  the effective date of this act are prohibited.

12         (5)  A local exchange telecommunications company is not

13  required to compensate a landlord under this section if the

14  local exchange telecommunications company provides

15  telecommunications services to tenants as the carrier of last

16  resort and another telecommunications company is not providing

17  telecommunications services to tenants.

18         (6)  The circuit court in the circuit in which the

19  multitenant environment is located has jurisdiction over

20  disputes arising between telecommunications companies,

21  tenants, and landlords concerning access to tenants for the

22  provision of telecommunications services to the multitenant

23  environment. In resolving disputes related to access, the

24  circuit court shall apply the standards described in

25  subsection (3).

26         Section 4.  Except as otherwise provided in this act,

27  this act shall take effect upon becoming a law.

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    Florida Senate - 1999                           CS for SB 1008
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1008

  3

  4  Provides legislative intent regarding universal service
    objectives and extends the interim mechanism for maintaining
  5  the universal service objectives established by the commission
    until January 1, 2001.
  6
    Provides that a local exchange telecommunications company may
  7  be relieved from its carrier of last resort obligations on
    January 1, 2001, if in full compliance with federal
  8  telecommunications law.

  9  Requires the Legislature to establish a permanent universal
    service mechanism that will take effect on or before January
10  1, 2001.

11  Provides that the mechanism may not result in an increase in
    basic local telecommunications rates; provides that local
12  exchange telecommunications companies may not recover
    universal service fund contributions through an explicit
13  end-user or line item surcharge.

14  Requires the commission, after studying and making findings
    regarding specified factors, to recommend to the Legislature,
15  by February 15, 2000, what the commission determines to be a
    specific, predictable, and sufficient mechanism for providing
16  universal service.

17  Establishes a legislative finding that an important public
    purpose is achieved in providing access to tenants in
18  multitenant environments for telecommunications companies
    seeking to promote competition and choice in delivering
19  telecommunications services, while at the same time balancing
    the private property rights of landlords.
20
    Creates standards for access by telecommunications companies
21  to tenants in multitenant environments, with access to be
    granted on a reasonable and technologically neutral basis and
22  with all telecommunications companies to be provided generally
    comparable terms and conditions for access.
23
    Confers jurisdiction over access or compensation disputes to
24  the circuit court where the multitenant environment is
    located.
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