House Bill 1135

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    Florida House of Representatives - 1999                HB 1135

        By Representative Goodlette






  1                      A bill to be entitled

  2         An act relating to multitenant

  3         telecommunication services; amending s. 364.01,

  4         F.S.; revising legislative intent; amending s.

  5         364.02, F.S.; providing additional definitions;

  6         creating s. 364.341, F.S.; providing for

  7         telecommunications services access to

  8         multitenant environments; providing standards;

  9         prohibiting certain exclusionary contracts;

10         providing for dispute resolution; providing

11         procedures and requirements; requiring the

12         Public Service Commission to adopt rules;

13         prohibiting certain compensation of landlords

14         under certain circumstances; amending ss.

15         196.012, 199.183, 212.08, 290.007, 350.0605,

16         364.602, and 489.103, F.S.; correcting cross

17         references; providing an effective date.

18

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

20

21         Section 1.  Subsection (3) of section 364.01, Florida

22  Statutes, is amended, and paragraph (j) is added to subsection

23  (4) of said section, to read:

24         364.01  Powers of commission, legislative intent.--

25         (3)  The Legislature finds that the competitive

26  provision of telecommunications services, including local

27  exchange telecommunications service, is in the public interest

28  and will provide customers with freedom of choice, encourage

29  the introduction of new telecommunications service, encourage

30  technological innovation, and encourage investment in

31  telecommunications infrastructure.  The Legislature further

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  1  finds that the transition from the monopoly provision of local

  2  exchange service to the competitive provision thereof will

  3  require appropriate regulatory oversight to protect consumers

  4  and provide for the development of fair and effective

  5  competition, but nothing in this chapter shall limit the

  6  availability to any party of any remedy under state or federal

  7  antitrust laws.  The Legislature further finds that changes in

  8  regulations allowing increased competition in

  9  telecommunications services could provide the occasion for

10  increases in the telecommunications workforce; therefore, it

11  is in the public interest that competition in

12  telecommunications services lead to a situation that enhances

13  the high-technological skills and the economic status of the

14  telecommunications workforce.  The Legislature also finds that

15  an important public purpose is achieved by providing access to

16  multitenant environments, public and private, residential and

17  nonresidential, for telecommunications companies seeking to

18  promote competition and choice in delivering

19  telecommunications services.

20         (4)  The commission shall exercise its exclusive

21  jurisdiction in order to:

22         (j)  Resolve disputes arising between

23  telecommunications companies, tenants, and landlords

24  concerning the provision of telecommunications services in

25  multitenant environments.

26         Section 2.  Section 364.02, Florida Statutes, 1998

27  Supplement, is amended to read:

28         364.02  Definitions.--As used in this chapter:

29         (1)  "Alternative local exchange telecommunications

30  company" means any company certificated by the commission to

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  1  provide local exchange telecommunications services in this

  2  state on or after July 1, 1995.

  3         (2)  "Basic local telecommunications service" means

  4  voice-grade, flat-rate residential, and flat-rate single-line

  5  business local exchange services which provide dial tone,

  6  local usage necessary to place unlimited calls within a local

  7  exchange area, dual tone multifrequency dialing, and access to

  8  the following:  emergency services such as "911," all locally

  9  available interexchange companies, directory assistance,

10  operator services, relay services, and an alphabetical

11  directory listing. For a local exchange telecommunications

12  company, such term shall include any extended area service

13  routes, and extended calling service in existence or ordered

14  by the commission on or before July 1, 1995.

15         (3)  "Commercial mobile radio service provider" means a

16  commercial mobile radio service provider as defined by and

17  pursuant to 47 U.S.C. ss. 153(n) and 332(d).

18         (4)  "Commission" means the Florida Public Service

19  Commission.

20         (5)  "Corporation" includes a corporation, company,

21  association, or joint stock association.

22         (6)  "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 the

26  telecommunications service.

27         (7)(6)  "Local exchange telecommunications company"

28  means any company certificated by the commission to provide

29  local exchange telecommunications service in this state on or

30  before June 30, 1995.

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  1         (8)  "Marketing agreement" means an agreement between a

  2  landlord or property manager and a telecommunications company

  3  in which the telecommunications company provides some form of

  4  remuneration to the landlord or property manager for each

  5  tenant subscribing to the service of the telecommunications

  6  company.

  7         (9)(7)  "Monopoly service" means a telecommunications

  8  service for which there is no effective competition, either in

  9  fact or by operation of law.

10         (10)  "Multitenant environment" includes any type of

11  structure, ownership interest, and tenancy with multiple

12  owners or tenants except:

13         (a)  Condominiums, as defined in chapter 718, in which

14  the condominium owners have delegated responsibility to a

15  group of individuals, entity, board, or association to secure

16  one provider of telecommunications services for all end-users

17  in the condominium.

18         (b)  Cooperatives, as defined in chapter 719, in which

19  the cooperative owners have delegated responsibility to a

20  group of individuals, entity, board, or association to secure

21  one provider of telecommunications services for all end-users

22  in the cooperative.

23         (c)  Homeowners' associations, as defined in chapter

24  617.

25         (d)  Short-term tenancies served by call aggregators as

26  defined by commission rule.

27         (e)  Tenancies that are less than 12 months in

28  duration.  As used in this chapter, the term "tenant" includes

29  any person, corporation, or entity possessing an ownership

30  interest in a condominium or cooperative which is not excluded

31  from the definition of a multitenant environment.

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  1         (11)(8)  "Nonbasic service" means any

  2  telecommunications service provided by a local exchange

  3  telecommunications company other than a basic local

  4  telecommunications service, a local interconnection

  5  arrangement described in s. 364.16, or a network access

  6  service described in s. 364.163.

  7         (12)(9)  "Operator service" includes, but is not

  8  limited to, billing or completion of third-party,

  9  person-to-person, collect, or calling card or credit card

10  calls through the use of a live operator or automated

11  equipment.

12         (13)(10)  "Operator service provider" means a person

13  who furnishes operator service through a call aggregator.

14         (14)(11)  "Service" is to be construed in its broadest

15  and most inclusive sense.

16         (15)(12)  "Telecommunications company" includes every

17  corporation, partnership, and person and their lessees,

18  trustees, or receivers appointed by any court whatsoever, and

19  every political subdivision in the state, offering two-way

20  telecommunications service to the public for hire within this

21  state by the use of a telecommunications facility.  The term

22  "telecommunications company" does not include:

23         (a)  An entity which provides a telecommunications

24  facility exclusively to a certificated telecommunications

25  company;

26         (b)  An entity which provides a telecommunications

27  facility exclusively to a company which is excluded from the

28  definition of a telecommunications company under this

29  subsection;

30         (c)  A commercial mobile radio service provider;

31         (d)  A facsimile transmission service;

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  1         (e)  A private computer data network company not

  2  offering service to the public for hire; or

  3         (f)  A cable television company providing cable service

  4  as defined in 47 U.S.C. s. 522.

  5

  6  However, each commercial mobile radio service provider shall

  7  continue to be liable for any taxes imposed pursuant to

  8  chapters 203 and 212 and any fees assessed pursuant to s.

  9  364.025.

10         (16)(13)  "Telecommunications facility" includes real

11  estate, easements, apparatus, property, and routes used and

12  operated to provide two-way telecommunications service to the

13  public for hire within this state.

14         Section 3.  Section 364.341, Florida Statutes, is

15  created to read:

16         364.341  Multitenant environments; regulation; access;

17  exclusionary contracts prohibited; disclosure.--

18         (1)  The following are standards for access by

19  telecommunications companies to tenants in multitenant

20  environments:

21         (a)  Access shall be granted on a reasonable,

22  nondiscriminatory, and technologically neutral basis.

23         (b)  Tenants, landlords, and telecommunications

24  providers shall make every reasonable effort to negotiate

25  terms and conditions for access.

26         (c)  A landlord may charge a telecommunications company

27  or tenant the reasonable and nondiscriminatory costs of

28  installation, removal of telecommunications network equipment

29  and facilities, or other costs of providing service to the

30  tenant.

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  1         (d)  The tenant shall be responsible for obtaining all

  2  necessary easements across another tenant's premises.

  3         (e)  A landlord may impose conditions reasonably

  4  necessary for the safety, security, and aesthetics of the

  5  property.

  6         (f)  A landlord may not deny access to space or conduit

  7  previously dedicated to public service if that space or

  8  conduit is sufficient to accommodate the facilities needed for

  9  access.  A landlord may deny access to space or conduit if the

10  space or conduit required for installation is not reasonably

11  sufficient to accommodate the request or where the

12  installation would unreasonably interfere with the aesthetics

13  of the building.

14         (g)  A landlord shall not charge a fee for the

15  privilege of providing telecommunications service to a tenant

16  in a multitenant environment.

17         (h)  Nothing in this section shall abrogate the

18  obligations of the carrier-of-last-resort described in s.

19  364.025.

20         (2)  Exclusionary contracts between telecommunications

21  companies and landlords for the provision of

22  telecommunications services to multitenant environments are

23  prohibited.

24         (3)  A landlord shall disclose to potential tenants the

25  existence of any marketing agreement.

26         (4)  The commission shall have exclusive jurisdiction

27  for the purpose of resolving disputes arising between

28  telecommunications companies, tenants, and landlords

29  concerning access to tenants for the provision of

30  telecommunications services in multitenant environments.

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  1         (a)  The following must occur before an action for

  2  access may be brought:

  3         1.  After a tenant initiates a request to a

  4  telecommunications company for service, the telecommunications

  5  company and the tenant shall convey the request for service to

  6  the landlord.

  7         2.  If a landlord is unresponsive to a request for

  8  access, a written request shall be submitted to the landlord.

  9         3.  If the landlord fails to timely respond, if access

10  is denied, or if reasonable and nondiscriminatory terms for

11  access cannot be agreed upon, the telecommunications company

12  and the tenant may file a petition with the commission for

13  review.

14         (b)  In resolving disputes related to access, the

15  commission shall apply the standards described in subsection

16  (1).

17         (5)  The commission shall adopt rules to implement the

18  provisions of this section.

19         (6)  In no event shall a local exchange

20  telecommunications company be required to compensate a

21  landlord under this section if the local exchange

22  telecommunications company provides telecommunications

23  services to tenants as the carrier-of-last-resort and another

24  telecommunications company is not providing telecommunications

25  services to tenants.

26         Section 4.  Subsection (6) of section 196.012, Florida

27  Statutes, is amended to read:

28         196.012  Definitions.--For the purpose of this chapter,

29  the following terms are defined as follows, except where the

30  context clearly indicates otherwise:

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  1         (6)  Governmental, municipal, or public purpose or

  2  function shall be deemed to be served or performed when the

  3  lessee under any leasehold interest created in property of the

  4  United States, the state or any of its political subdivisions,

  5  or any municipality, agency, special district, authority, or

  6  other public body corporate of the state is demonstrated to

  7  perform a function or serve a governmental purpose which could

  8  properly be performed or served by an appropriate governmental

  9  unit or which is demonstrated to perform a function or serve a

10  purpose which would otherwise be a valid subject for the

11  allocation of public funds. For purposes of the preceding

12  sentence, an activity undertaken by a lessee which is

13  permitted under the terms of its lease of real property

14  designated as an aviation area on an airport layout plan which

15  has been approved by the Federal Aviation Administration and

16  which real property is used for the administration, operation,

17  business offices and activities related specifically thereto

18  in connection with the conduct of an aircraft full service

19  fixed base operation which provides goods and services to the

20  general aviation public in the promotion of air commerce shall

21  be deemed an activity which serves a governmental, municipal,

22  or public purpose or function. Any activity undertaken by a

23  lessee which is permitted under the terms of its lease of real

24  property designated as a public airport as defined in s.

25  332.004(14) by municipalities, agencies, special districts,

26  authorities, or other public bodies corporate and public

27  bodies politic of the state, or which is located in a

28  deepwater port identified in s. 403.021(9)(b) and owned by one

29  of the foregoing governmental units, subject to a leasehold or

30  other possessory interest of a nongovernmental lessee that is

31  deemed to perform an aviation or airport or maritime or port

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  1  purpose or operation shall be deemed an activity that serves a

  2  governmental, municipal, or public purpose. The use by a

  3  lessee, licensee, or management company of real property or a

  4  portion thereof as a convention center, visitor center, sports

  5  facility with permanent seating, concert hall, arena, stadium,

  6  park, or beach is deemed a use that serves a governmental,

  7  municipal, or public purpose or function when access to the

  8  property is open to the general public with or without a

  9  charge for admission. If property deeded to a municipality by

10  the United States is subject to a requirement that the Federal

11  Government, through a schedule established by the Secretary of

12  the Interior, determine that the property is being maintained

13  for public historic preservation, park, or recreational

14  purposes and if those conditions are not met the property will

15  revert back to the Federal Government, then such property

16  shall be deemed to serve a municipal or public purpose. The

17  term "governmental purpose" also includes a direct use of

18  property on federal lands in connection with the Federal

19  Government's Space Exploration Program. Real property and

20  tangible personal property owned by the Federal Government and

21  used for defense and space exploration purposes or which is

22  put to a use in support thereof shall be deemed to perform an

23  essential national governmental purpose and shall be exempt.

24  "Owned by the lessee" as used in this chapter does not include

25  personal property, buildings, or other real property

26  improvements used for the administration, operation, business

27  offices and activities related specifically thereto in

28  connection with the conduct of an aircraft full service fixed

29  based operation which provides goods and services to the

30  general aviation public in the promotion of air commerce

31  provided that the real property is designated as an aviation

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  1  area on an airport layout plan approved by the Federal

  2  Aviation Administration. For purposes of determination of

  3  "ownership," buildings and other real property improvements

  4  which will revert to the airport authority or other

  5  governmental unit upon expiration of the term of the lease

  6  shall be deemed "owned" by the governmental unit and not the

  7  lessee. Providing two-way telecommunications services to the

  8  public for hire by the use of a telecommunications facility,

  9  as defined in s. 364.02(13), and for which a certificate is

10  required under chapter 364 does not constitute an exempt use

11  for purposes of s. 196.199, unless the telecommunications

12  services are provided by the operator of a public-use airport,

13  as defined in s. 332.004, for the operator's provision of

14  telecommunications services for the airport or its tenants,

15  concessionaires, or licensees, or unless the

16  telecommunications services are provided by a public hospital.

17  However, property that is being used to provide such

18  telecommunications services on or before October 1, 1997,

19  shall remain exempt, but such exemption expires October 1,

20  2004.

21         Section 5.  Paragraph (b) of subsection (1) of section

22  199.183, Florida Statutes, is amended to read:

23         199.183  Taxpayers exempt from annual and nonrecurring

24  taxes.--

25         (1)  Intangible personal property owned by this state

26  or any of its political subdivisions or municipalities shall

27  be exempt from taxation under this chapter. This exemption

28  does not apply to:

29         (b)  Property related to the provision of two-way

30  telecommunications services to the public for hire by the use

31  of a telecommunications facility, as defined in s. 364.02(13),

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  1  and for which a certificate is required under chapter 364,

  2  when such service is provided by any county, municipality, or

  3  other political subdivision of the state. Any immunity of any

  4  political subdivision of the state or other entity of local

  5  government from taxation of the property used to provide

  6  telecommunication services that is taxed as a result of this

  7  paragraph is hereby waived. However, intangible personal

  8  property related to the provision of such telecommunications

  9  services provided by the operator of a public-use airport, as

10  defined in s. 332.004, for the operator's provision of

11  telecommunications services for the airport or its tenants,

12  concessionaires, or licensees, and intangible personal

13  property related to the provision of such telecommunications

14  services provided by a public hospital, are exempt from

15  taxation under this chapter.

16         Section 6.  Subsection (6) of section 212.08, Florida

17  Statutes, 1998 Supplement, is amended to read:

18         212.08  Sales, rental, use, consumption, distribution,

19  and storage tax; specified exemptions.--The sale at retail,

20  the rental, the use, the consumption, the distribution, and

21  the storage to be used or consumed in this state of the

22  following are hereby specifically exempt from the tax imposed

23  by this chapter.

24         (6)  EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are

25  also exempt from the tax imposed by this chapter sales made to

26  the United States Government, a state, or any county,

27  municipality, or political subdivision of a state when payment

28  is made directly to the dealer by the governmental entity.

29  This exemption shall not inure to any transaction otherwise

30  taxable under this chapter when payment is made by a

31  government employee by any means, including, but not limited

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  1  to, cash, check, or credit card when that employee is

  2  subsequently reimbursed by the governmental entity. This

  3  exemption does not include sales of tangible personal property

  4  made to contractors employed either directly or as agents of

  5  any such government or political subdivision thereof when such

  6  tangible personal property goes into or becomes a part of

  7  public works owned by such government or political

  8  subdivision. A determination whether a particular transaction

  9  is properly characterized as an exempt sale to a government

10  entity or a taxable sale to a contractor shall be based on the

11  substance of the transaction rather than the form in which the

12  transaction is cast. The department shall adopt rules that

13  give special consideration to factors that govern the status

14  of the tangible personal property before its affixation to

15  real property. In developing these rules, assumption of the

16  risk of damage or loss is of paramount consideration in the

17  determination. This exemption does not include sales, rental,

18  use, consumption, or storage for use in any political

19  subdivision or municipality in this state of machines and

20  equipment and parts and accessories therefor used in the

21  generation, transmission, or distribution of electrical energy

22  by systems owned and operated by a political subdivision in

23  this state for transmission or distribution expansion.

24  Likewise exempt are charges for services rendered by radio and

25  television stations, including line charges, talent fees, or

26  license fees and charges for films, videotapes, and

27  transcriptions used in producing radio or television

28  broadcasts. The exemption provided in this subsection does not

29  include sales, rental, use, consumption, or storage for use in

30  any political subdivision or municipality in this state of

31  machines and equipment and parts and accessories therefor used

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  1  in providing two-way telecommunications services to the public

  2  for hire by the use of a telecommunications facility, as

  3  defined in s. 364.02(13), and for which a certificate is

  4  required under chapter 364, which facility is owned and

  5  operated by any county, municipality, or other political

  6  subdivision of the state.  Any immunity of any political

  7  subdivision of the state or other entity of local government

  8  from taxation of the property used to provide

  9  telecommunication services that is taxed as a result of this

10  section is hereby waived.  However, the exemption provided in

11  this subsection includes transactions taxable under this part

12  which are for use by the operator of a public-use airport, as

13  defined in s. 322.004, in providing such telecommunications

14  services for the airport or its tenants, concessionaires, or

15  licensees, or which are for use by a public hospital for the

16  provision of such telecommunications services.

17         Section 7.  Subsection (8) of section 290.007, Florida

18  Statutes, is amended to read:

19         290.007  State incentives available in enterprise

20  zones.--The following incentives are provided by the state to

21  encourage the revitalization of enterprise zones:

22         (8)  Notwithstanding any law to the contrary, the

23  Public Service Commission may allow public utilities and

24  telecommunications companies to grant discounts of up to 50

25  percent on tariffed rates for services to small businesses

26  located in an enterprise zone designated pursuant to s.

27  290.0065. Such discounts may be granted for a period not to

28  exceed 5 years. For purposes of this subsection, "public

29  utility" has the same meaning as in s. 366.02(1) and

30  "telecommunications company" has the same meaning as in s.

31  364.02(7).

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  1         Section 8.  Subsection (3) of section 350.0605, Florida

  2  Statutes, is amended to read:

  3         350.0605  Former commissioners and employees;

  4  representation of clients before commission.--

  5         (3)  For a period of 2 years following termination of

  6  service on the commission, a former member may not accept

  7  employment by or compensation from a business entity which,

  8  directly or indirectly, owns or controls a public utility

  9  regulated by the commission, from a public utility regulated

10  by the commission, from a business entity which, directly or

11  indirectly, is an affiliate or subsidiary of a public utility

12  regulated by the commission or is an actual business

13  competitor of a local exchange company or public utility

14  regulated by the commission and is otherwise exempt from

15  regulation by the commission under ss. 364.02(7) and

16  366.02(1), or from a business entity or trade association that

17  has been a party to a commission proceeding within the 2 years

18  preceding the member's termination of service on the

19  commission.  This subsection applies only to members of the

20  Florida Public Service Commission who are appointed or

21  reappointed after May 10, 1993.

22         Section 9.  Subsection (4) of section 364.602, Florida

23  Statutes, 1998 Supplement, is amended to read:

24         364.602  Definitions.--For purposes of this part:

25         (4)  "Originating party" means any person, firm,

26  corporation, or other entity, including a telecommunications

27  company or a billing clearinghouse, that provides any

28  telecommunications service or information service to a

29  customer or bills a customer through a billing party, except

30  the term "originating party" does not include any entity

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  1  specifically exempted from the definition of

  2  "telecommunications company" as provided in s. 364.02(12).

  3         Section 10.  Subsection (5) of section 489.103, Florida

  4  Statutes, 1998 Supplement, is amended to read:

  5         489.103  Exemptions.--This part does not apply to:

  6         (5)  Public utilities, including special gas districts

  7  as defined in chapter 189, telecommunications companies as

  8  defined in s. 364.02(7), and natural gas transmission

  9  companies as defined in s. 368.103(4), on construction,

10  maintenance, and development work performed by their

11  employees, which work, including, but not limited to, work on

12  bridges, roads, streets, highways, or railroads, is incidental

13  to their business. The board shall define, by rule, the term

14  "incidental to their business" for purposes of this

15  subsection.

16         Section 11.  This act shall take effect October 1,

17  1999.

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19            *****************************************

20                          HOUSE SUMMARY

21
      Provides for telecommunications services access to
22    multitenant environments. Provides standards, prohibits
      exclusionary contracts between landlords and
23    telecommunications companies, provides for dispute
      resolution, and prohibits requiring a local exchange
24    telecommunications company to compensate a landlord if
      such company provides telecommunications services to
25    tenants as a carrier-of-last-resort.

26

27

28

29

30

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