| 1 | Representative(s) Richardson offered the following: |
| 2 |
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| 3 | Amendment to Amendment (147581) |
| 4 | Remove line(s) 341-669 and insert: |
| 5 | Section 8. Communications services offered by governmental |
| 6 | entities.-- |
| 7 | (1) As used in this section, the term: |
| 8 | (a) "Advanced service" means high-speed-Internet-access- |
| 9 | service capability in excess of 200 kilobits per second in the |
| 10 | upstream or the downstream direction, including any service |
| 11 | application provided over the high-speed-access service or any |
| 12 | information service as defined in 47 U.S.C. s. 153(20). |
| 13 | (b) "Cable service" has the same meaning as in 47 U.S.C. |
| 14 | s. 522(6). |
| 15 | (c) "Communications services" includes any "advanced |
| 16 | service," "cable service," or "telecommunications service" and |
| 17 | shall be construed in the broadest sense. |
| 18 | (d) "Enterprise fund" means a separate fund to account for |
| 19 | the operation of communications services by a local government, |
| 20 | established and maintained in accordance with generally accepted |
| 21 | accounting principles as prescribed by the Governmental |
| 22 | Accounting Standards Board. |
| 23 | (e) "Governmental entity" means any political subdivision |
| 24 | as defined in section 1.01, Florida Statutes, including any |
| 25 | county, municipality, special district, school district, utility |
| 26 | authority or other authority or any instrumentality, agency, |
| 27 | unit or department thereof. The term does not include an |
| 28 | independent special district created before 1970 which has been |
| 29 | granted express legislative authority to provide a |
| 30 | communications service and which does not sell a communications |
| 31 | service outside its district boundaries. |
| 32 | (f) "Provide," "providing," "provision," or "provisioning" |
| 33 | means offering or supplying a communications service for a fee |
| 34 | or other consideration to a person, including any portion of the |
| 35 | public or private provider, but does not include service by an |
| 36 | entity to itself or to any other governmental entity. |
| 37 | (g) "Subscriber" means a person who receives a |
| 38 | communications service. |
| 39 | (h) "Telecommunications services" means the transmission |
| 40 | of signs, signals, writing, images, sounds, messages, data, or |
| 41 | other information of the user's choosing, by wire, radio, light |
| 42 | waves, or other electromagnetic means, without change in the |
| 43 | form or content of the information as sent and received by the |
| 44 | user and regardless of the facilities used. |
| 45 | (2)(a) A governmental entity that proposes to provide a |
| 46 | communications service shall hold no less than two public |
| 47 | hearings, which shall be held not less than 30 days apart. At |
| 48 | least 30 days before the first of the two public hearings, the |
| 49 | governmental entity must give notice of the hearing in the |
| 50 | predominant newspaper of general circulation in the area |
| 51 | considered for service. At least 40 days before the first public |
| 52 | hearing, the governmental entity must electronically provide |
| 53 | notice to the Department of Revenue and the Public Service |
| 54 | Commission, which shall post the notice on the department's and |
| 55 | the commission's website to be available to the public. The |
| 56 | Department of Revenue shall also send the notice by United |
| 57 | States Postal Service to the known addresses for all dealers of |
| 58 | communications services registered with the department under |
| 59 | chapter 202, Florida Statutes, or provide an electronic |
| 60 | notification, if the means are available, within 10 days after |
| 61 | receiving the notice. The notice must include the time and place |
| 62 | of the hearings and must state that the purpose of the hearings |
| 63 | is to consider whether the governmental entity will provide |
| 64 | communications services. The notice must include, at a minimum, |
| 65 | the geographic areas proposed to be served by the governmental |
| 66 | entity and the services, if any, which the governmental entity |
| 67 | believes are not currently being adequately provided. The notice |
| 68 | must also state that any dealer who wishes to do so may appear |
| 69 | and be heard at the public hearings. |
| 70 | (b) At a public hearing required by this subsection, a |
| 71 | governmental entity must, at a minimum, consider: |
| 72 | 1. Whether the service that is proposed to be provided is |
| 73 | currently being offered in the community and, if so, whether the |
| 74 | service is generally available throughout the community. |
| 75 | 2. Whether a similar service is currently being offered in |
| 76 | the community and, if so, whether the service is generally |
| 77 | available throughout the community. |
| 78 | 3. If the same or similar service is not currently |
| 79 | offered, whether any other service provider proposes to offer |
| 80 | the same or a similar service and, if so, what assurances that |
| 81 | service provider is willing or able to offer regarding the same |
| 82 | or similar service. |
| 83 | 4. The capital investment required by the government |
| 84 | entity to provide the communications service, the estimated |
| 85 | realistic cost of operation and maintenance and, using a full |
| 86 | cost-accounting method, the estimated realistic revenues and |
| 87 | expenses of providing the service and the proposed method of |
| 88 | financing. |
| 89 | 5. The private and public costs and benefits of providing |
| 90 | the service by a private entity or a governmental entity, |
| 91 | including the affect on existing and future jobs, actual |
| 92 | economic development prospects, tax-base growth, education, and |
| 93 | public health. |
| 94 | (c) At one or more of the public hearings under this |
| 95 | subsection, the governmental entity must make available to the |
| 96 | public a written business plan for the proposed communications |
| 97 | service venture containing, at a minimum: |
| 98 | 1. The projected number of subscribers to be served by the |
| 99 | venture. |
| 100 | 2. The geographic area to be served by the venture. |
| 101 | 3. The types of communications services to be provided. |
| 102 | 4. A plan to ensure that revenues exceed operating |
| 103 | expenses and payment of principal and interest on debt within 4 |
| 104 | years. |
| 105 | 5. Estimated capital and operational costs and revenues |
| 106 | for the first 4 years. |
| 107 | 6. Projected network modernization and technological |
| 108 | upgrade plans, including estimated costs. |
| 109 | (d) After making specific findings regarding the factors |
| 110 | in paragraphs (b) and (c), the governmental entity may authorize |
| 111 | providing a communications service by a majority recorded vote |
| 112 | and by resolution, ordinance, or other formal means of adoption. |
| 113 | (e) The governing body of a governmental entity may issue |
| 114 | one or more bonds to finance the capital costs for facilities to |
| 115 | provide a communications service. However: |
| 116 | 1. A governmental entity may only pledge revenues in |
| 117 | support of the issuance of any bond to finance providing a |
| 118 | communications service: |
| 119 | a. Within the county in which the governmental entity is |
| 120 | located; |
| 121 | b. Within an area in which the governmental entity |
| 122 | provides electric service outside its home county under an |
| 123 | electric service territorial agreement approved by the Public |
| 124 | Service Commission before the effective date of this act; or |
| 125 | c. If the governmental entity is a municipality or special |
| 126 | district, within its corporate limits or in an area in which the |
| 127 | municipality or special district provides water, wastewater, |
| 128 | electric, or natural gas service, or within an urban service |
| 129 | area designated in a comprehensive plan, whichever is larger, |
| 130 | unless the municipality or special district obtains the consent |
| 131 | of the governmental entity within the boundaries of which the |
| 132 | municipality or special district proposes to provide service. |
| 133 | 2. Revenue bonds issued in order to finance providing a |
| 134 | communications service are not subject to the approval of the |
| 135 | electors if the revenue bonds mature within 15 years. Revenue |
| 136 | bonds issued to finance providing a communications service that |
| 137 | does not mature within 15 years must be approved by the |
| 138 | electors. The election must be conducted as specified in chapter |
| 139 | 100, Florida Statutes. |
| 140 | (f) A governmental entity providing a communications |
| 141 | service may not price any service below the cost of providing |
| 142 | the service by subsidizing the communications service with |
| 143 | moneys from rates paid by subscribers of a noncommunications |
| 144 | services utility or from any other revenues. The cost standard |
| 145 | for determining cross-subsidization is whether the total revenue |
| 146 | from the service is less than the total long-run incremental |
| 147 | cost of the service. Total long-run incremental cost means |
| 148 | service-specific volume and nonvolume-sensitive costs. |
| 149 | (g) A governmental entity providing a communications |
| 150 | service must comply with the requirements of section 218.32, |
| 151 | Florida Statutes, and shall keep separate and accurate books and |
| 152 | records, maintained in accordance with generally accepted |
| 153 | accounting principles, of a governmental entity's communication |
| 154 | service, and they shall be made available for any audits of the |
| 155 | books and records conducted under applicable law. To facilitate |
| 156 | equitable distribution of indirect costs, a local government |
| 157 | shall develop and follow a cost-allocation plan, which is a |
| 158 | procedure for allocating direct and indirect costs and which is |
| 159 | generally developed in accordance with OMB Circular A-87, Cost |
| 160 | Principles for State, Local, and Indian Tribal Government, |
| 161 | published by the United States Office of Management and Budget. |
| 162 | (h) The governmental entity shall establish an enterprise |
| 163 | fund to account for its operation of communications services. |
| 164 | (i) The governmental entity shall adopt separate operating |
| 165 | and capital budgets for its communications services. |
| 166 | (j) A governmental entity may not use its powers of |
| 167 | eminent domain under chapter 73, Florida Statutes, solely or |
| 168 | primarily for the purpose of providing a communications service. |
| 169 | (k) The governmental entity shall conduct an annual review |
| 170 | at a formal public meeting to consider the progress the |
| 171 | governmental entity is making toward reaching its business plan |
| 172 | goals and objectives for providing communication services. At |
| 173 | the public meeting the governmental entity shall review the |
| 174 | related revenues, operating expenses, and payment of interest on |
| 175 | debt. |
| 176 | (l) If, after 4 years after the initiation of |
| 177 | communications services, revenues do not exceed operating |
| 178 | expenses and payment of principal and interest on the debt, a |
| 179 | governmental entity shall hold a public hearing at which the |
| 180 | governmental entity must consider the disposition of the system, |
| 181 | a plan to limit or cease operations, a partnership with a |
| 182 | private entity, or any other means appropriate to ensure that |
| 183 | the goals of the business plan required under paragraph (c) are |
| 184 | met, including ways of reducing operating expenses or increasing |
| 185 | revenues. |
| 186 | (3)(a) A governmental entity that provides a cable service |
| 187 | shall comply with the Cable Communications Policy Act of 1984, |
| 188 | 47 U.S.C. 521, et seq., the regulations issued by the Federal |
| 189 | Communications Commission under the Cable Communications Policy |
| 190 | Act of 1984, 47 U.S.C. 521, et seq., and all applicable state |
| 191 | and federal rules and regulations, including, but not limited |
| 192 | to, section 166.046, Florida Statutes, and those provisions of |
| 193 | chapters 202, 212, and 337, Florida Statutes, which apply to a |
| 194 | provider of the services. |
| 195 | (b) A governmental entity that provides a |
| 196 | telecommunications service or advanced service must comply, if |
| 197 | applicable, with chapter 364, Florida Statutes, and rules |
| 198 | adopted by the Public Service Commission; chapter 166, Florida |
| 199 | Statutes; and all applicable state and federal rules and |
| 200 | regulations, including, but not limited to, those provisions of |
| 201 | chapters 202, 212, and 337, Florida Statutes, which apply to a |
| 202 | provider of the services. |
| 203 | (c) A governmental entity may not exercise its power or |
| 204 | authority in any area, including zoning or land use regulation, |
| 205 | to require any person, including residents of a particular |
| 206 | development, to use or subscribe to any communication service of |
| 207 | a governmental entity. |
| 208 | (d) A governmental entity shall apply its ordinances, |
| 209 | rules, and policies, and exercise any authority under state or |
| 210 | federal laws, including, but not limited to, those relating to |
| 211 | the following subjects and without discrimination as to itself |
| 212 | when providing a communications service or to any private |
| 213 | provider of communications services: |
| 214 | 1. Access to public rights-of-way; and |
| 215 | 2. Permitting, access to, use of, and payment for use of |
| 216 | governmental entity-owned poles. The governmental entity is |
| 217 | subject to the same terms, conditions, and fees, if any, for |
| 218 | access to government-owned poles which the governmental entity |
| 219 | applies to a private provider for access. |
| 220 | (4)(a) If a governmental entity was providing, as of April |
| 221 | 1, 2005, advanced services, cable services, or |
| 222 | telecommunications services, then it is not required to comply |
| 223 | with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), |
| 224 | paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), |
| 225 | paragraph (2)(k), or paragraph (2)(l), in order to continue to |
| 226 | provide advanced services, cable services, or telecommunications |
| 227 | services, respectively, but it must comply with and be subject |
| 228 | to all other provisions of this section. |
| 229 | (b) If a governmental entity, as of April 1, 2005, had |
| 230 | issued debt pledging revenues from an advanced service, cable |
| 231 | service, or telecommunications service, then it is not required |
| 232 | to comply with paragraph (2)(a), paragraph (2)(b), paragraph |
| 233 | (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph |
| 234 | (2)(f), paragraph (2)(k), or paragraph (2)(l), in order to |
| 235 | provide advanced services, cable services, or telecommunications |
| 236 | services, respectively, but it must comply with and be subject |
| 237 | to all other provisions of this section. |
| 238 | (c) If a governmental entity, as of April 1, 2005, has |
| 239 | purchased equipment specifically for the provisioning of |
| 240 | advanced service, cable service, or telecommunication service, |
| 241 | and, as of May 6, 2005, has authorized the providing of an |
| 242 | advanced service, cable service, or telecommunication service, |
| 243 | then it is not required to comply with paragraph (2)(a), |
| 244 | paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub- |
| 245 | subparagraph (2)(e)1.c., paragraph (2)(f), paragraph (2)(k), or |
| 246 | paragraph (2)(l) in order to provide advanced service, cable |
| 247 | service, or telecommunication service, respectively, but it must |
| 248 | comply with and be subject to all other provisions of this |
| 249 | section. |
| 250 |
|
| 251 | This subsection does not relieve a governmental entity from |
| 252 | complying with subsection (5). |
| 253 | (5) Notwithstanding section 542.235, Florida Statutes, or |
| 254 | any other law, a governmental entity that provides a |
| 255 | communications service is subject to the same prohibitions |
| 256 | applicable to private providers under sections 542.18 and |
| 257 | 542.19, Florida Statutes, as it relates to providing a |
| 258 | communications service. In addition, the exemption from |
| 259 | complying with paragraph (2)(f), does not confer state action |
| 260 | immunity, or any other antitrust immunity or exemption, on any |
| 261 | governmental entity providing communications services. |
| 262 | (6) To ensure the safe and secure transportation of |
| 263 | passengers and freight through an airport facility, as defined |
| 264 | in section 159.27(17), Florida Statutes, an airport authority or |
| 265 | other governmental entity that provides or is proposing to |
| 266 | provide communications services only within the boundaries of |
| 267 | its airport layout plan, as defined in section 333.01(6), |
| 268 | Florida Statutes, to subscribers which are integral and |
| 269 | essential to the safe and secure transportation of passengers |
| 270 | and freight through the airport facility, is exempt from this |
| 271 | section. An airport authority or other governmental entity that |
| 272 | provides or is proposing to provide shared-tenant service under |
| 273 | section 364.339, Florida Statutes, but not dial tone enabling |
| 274 | subscribers to complete calls outside the airport layout plan, |
| 275 | to one or more subscribers within its airport layout plan which |
| 276 | are not integral and essential to the safe and secure |
| 277 | transportation of passengers and freight through the airport |
| 278 | facility is exempt from this section. An airport authority or |
| 279 | other governmental entity that provides or is proposing to |
| 280 | provide communications services to one or more subscribers |
| 281 | within its airport layout plan which are not integral and |
| 282 | essential to the safe and secure transportation of passengers |
| 283 | and freight through the airport facility, or to one or more |
| 284 | subscribers outside its airport layout plan, is not exempt from |
| 285 | this section. By way of example and not limitation, the |
| 286 | integral, essential subscribers may include airlines and |
| 287 | emergency service entities, and the nonintegral, nonessential |
| 288 | subscribers may include retail shops, restaurants, hotels, or |
| 289 | rental car companies. |
| 290 | (7) This section does not alter or affect any provision in |
| 291 | the charter, code, or other governing authority of a |
| 292 | governmental entity. |