1 | Representative(s) Attkisson offered the following: |
2 |
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3 | Amendment (with title amendment) |
4 | Remove everything after the enacting clause and insert: |
5 | Section 1. 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, or |
26 | utility authority or other authority or any instrumentality, |
27 | agency, unit, or department thereof. The term does not include |
28 | an independent special district created before 1970 which has |
29 | been 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 a private provider, but does not include service by a |
36 | governmental entity to itself or to any other governmental law |
37 | enforcement or governmental emergency services entity. |
38 | (g) "Subscriber" means a person who receives a |
39 | communications service. |
40 | (h) "Telecommunications services" means the transmission |
41 | of signs, signals, writing, images, sounds, messages, data, or |
42 | other information of the user's choosing, by wire, radio, light |
43 | waves, or other electromagnetic means, without change in the |
44 | form or content of the information as sent and received by the |
45 | user and regardless of the facilities used, including, without |
46 | limitation, wireless facilities. |
47 | (2)(a) Prior to a proposal to provide any provision of |
48 | communications services, a governmental entity shall hold no |
49 | less than two public hearing not less than 30 days apart. At |
50 | least 30 days before the first of the two public hearings, the |
51 | governmental entity shall give notice of the hearing in the |
52 | predominant newspaper of general circulation in the area |
53 | considered for service. At least 40 days before the first public |
54 | hearing, the governmental entity shall electronically provide |
55 | notice to the Department of Revenue and the Public Service |
56 | Commission, which shall post the notice on the department's and |
57 | the commission's website. The Department of Revenue shall also |
58 | send the notice by United States Postal Service to the known |
59 | addresses for all dealers of communications services registered |
60 | with the department under chapter 202, Florida Statutes, or |
61 | provide an electronic notification, if the means are available, |
62 | within 10 days after receiving the notice. The notice shall |
63 | include the time and place of the hearings and shall state that |
64 | the purpose of the hearings is to consider whether the |
65 | governmental entity will provide communications services. The |
66 | notice shall include, at a minimum, the geographic areas |
67 | proposed to be served by the governmental entity and the |
68 | services, if any, which the governmental entity believes are not |
69 | currently being adequately provided. The notice shall also state |
70 | that any dealer who wishes to do so may appear and be heard at |
71 | the public hearings. |
72 | (b) At a public hearing required by this subsection, a |
73 | governmental entity shall, at a minimum, consider: |
74 | 1. Whether the service that is proposed to be provided is |
75 | currently being offered in the community and, if so, whether the |
76 | service is generally available throughout the community. |
77 | 2. Whether a similar service is currently being offered in |
78 | the community and, if so, whether the service is generally |
79 | available throughout the community. |
80 | 3. If the same or a similar service is not currently |
81 | offered, whether any other service provider proposes to offer |
82 | the same or a similar service and, if so, what assurances that |
83 | service provider is willing or able to offer regarding the same |
84 | or similar service. |
85 | 4. The capital investment required by the governmental |
86 | entity to provide the communications service, the estimated |
87 | realistic cost of operation and maintenance, and, using a full |
88 | cost-accounting method, the estimated realistic revenues and |
89 | expenses of providing the service and the proposed method of |
90 | financing. |
91 | 5. The private and public costs and benefits of providing |
92 | the service by a private entity or a governmental entity, |
93 | including the effect on existing and future jobs, actual |
94 | economic development prospects, tax-base growth, education, and |
95 | public health. |
96 | (c) At one or more of the public hearings under this |
97 | subsection, the governmental entity shall make available to the |
98 | public a written business plan for the proposed communications |
99 | service venture containing, at a minimum: |
100 | 1. The projected number of customers to be served by the |
101 | venture. |
102 | 2. The geographic area to be served by the venture. |
103 | 3. The types of communications services to be provided. |
104 | 4. A plan to ensure that revenues exceed operating |
105 | expenses and payment of principal and interest on debt within 4 |
106 | years. |
107 | 5. Estimated capital and operational costs and revenues |
108 | for the first 4 years. |
109 | 6. Projected network modernization and technological |
110 | upgrade plans, including estimated costs. |
111 | (d) After making specific findings regarding the factors |
112 | in paragraphs (2)(b) and (2)(c), the governmental entity may |
113 | authorize providing a communications service by a majority |
114 | recorded vote, by resolution, ordinance, or other formal means |
115 | of adoption. |
116 | (e) The governing body of a governmental entity may issue |
117 | one or more bonds to finance the capital costs for facilities to |
118 | provide a communications service. However: |
119 | 1. A governmental entity may only pledge revenues in |
120 | support of the issuance of any bond to finance provision of a |
121 | communications service: |
122 | a. Within the county in which the governmental entity is |
123 | located; |
124 | b. Within an area in which the governmental entity |
125 | provides electric service outside its home county under an |
126 | electric service territorial agreement approved by the Public |
127 | Service Commission before the effective date of this act; or |
128 | c. If the governmental entity is a municipality or special |
129 | district, within its corporate limits or in an area in which the |
130 | municipality or special district provides water, wastewater, or |
131 | electric or natural gas service, or within an urban service area |
132 | designated in a comprehensive plan, whichever is larger, unless |
133 | the municipality or special district obtains the consent, by a |
134 | majority recorded vote by resolution, ordinance, or other formal |
135 | means of adoption, of the governmental entity within the |
136 | boundaries of which the municipality or special district |
137 | proposes to provide service. |
138 |
|
139 | Any governmental entity from which consent is sought pursuant to |
140 | sub-subparagraph c. shall be located within the county in which |
141 | the governmental entity is located for consent to be effective. |
142 | 2. Revenue bonds issued in order to finance provision of a |
143 | communications service are not subject to the approval of the |
144 | electors if the revenue bonds mature within 15 years. Revenue |
145 | bonds issued to finance provision of a communications service |
146 | that does not mature within 15 years shall be approved by the |
147 | electors. The election shall be conducted as specified in |
148 | chapter 100, Florida Statutes. |
149 | (f) A governmental entity providing a communications |
150 | service may not price any service below the cost of providing |
151 | the service by subsidizing the communications service with |
152 | moneys from rates paid by customers of a noncommunications |
153 | services utility or from any other revenues. The cost standard |
154 | for determining cross-subsidization is whether the total revenue |
155 | from the service is less than the total long-run incremental |
156 | cost, including direct costs and indirect costs, as allocated |
157 | pursuant to the cost-allocation plan described in paragraph (g), |
158 | of the service. "Total long-run incremental cost" means service- |
159 | specific volume and nonvolume-sensitive costs. |
160 | (g) A governmental entity providing a communications |
161 | service shall keep separate and accurate books and records, |
162 | maintained in accordance with generally accepted accounting |
163 | principles, of a governmental entity's communication service, |
164 | which books and records shall be made available for any audits |
165 | of the books and records conducted under applicable law. To |
166 | facilitate equitable distribution of indirect costs, a local |
167 | governmental entity shall develop and follow a cost-allocation |
168 | plan in accordance with OMB Circular A-87, Cost Principles for |
169 | State, Local, and Indian Tribal Government, published by the |
170 | United States Office of Management and Budget. |
171 | (h) The governmental entity shall establish an enterprise |
172 | fund to account for its operation of communications services. |
173 | (i) The governmental entity shall adopt separate operating |
174 | and capital budgets for its communications services. |
175 | (j) A governmental entity may not use its powers of |
176 | eminent domain under chapter 73, Florida Statutes, solely or |
177 | primarily for the purpose of providing a communications service. |
178 | (k) If, after 4 years following the initiation of the |
179 | provision of communications services by a governmental entity or |
180 | 4 years after the effective date of this act, whichever is |
181 | later, revenues do not exceed operating expenses and payment of |
182 | principal and interest on the debt for a governmental entity's |
183 | provision of communications services, no later than 60 days |
184 | following the end of the 4-year period a governmental entity |
185 | shall hold a public hearing at which the governmental entity |
186 | shall do at least one of the following: |
187 | 1. Approve a plan to cease providing communications |
188 | services; |
189 | 2. Approve a plan to dispose of the system the |
190 | governmental entity is using to provide communications services |
191 | and, accordingly, to cease providing communications services; |
192 | 3. Approve a plan to create a partnership with a private |
193 | entity in order to achieve operations in which revenues exceed |
194 | operating expenses and payment of principal and interest on |
195 | debt; or |
196 | 4. Approve the continuing provision of communications |
197 | services. |
198 | (l) If the governmental entity chooses to continue |
199 | providing communications services, or approves a plan provided |
200 | in paragraph (k), but thereafter does not implement the plan, |
201 | the governmental entity shall either develop a new business plan |
202 | provided under paragraph (c) or provide notice of the decision |
203 | to not pursue the provisions under paragraph (k). The new plan |
204 | shall be submitted to the governing body for approval within 60 |
205 | days after the public hearing and shall be implemented upon |
206 | approval. If the governing body does not approve the new plan, |
207 | the governmental entity shall cease providing communications |
208 | services within 12 months thereafter. |
209 | (m) The governmental entity shall conduct an annual review |
210 | at a formal public meeting to consider the progress the |
211 | governmental entity is making toward reaching its business plan |
212 | goals and objectives for providing communication services. At |
213 | the public meeting, the governmental entity shall review the |
214 | related revenues, operating expenses, and payment of interest on |
215 | debt. |
216 | (n)1. Within 12 months after the end of each fiscal year, |
217 | a governmental entity that is providing communications services |
218 | shall prepare a modified statement of revenues, expenses, and |
219 | changes in net assets for the enterprise fund used to account |
220 | for the communications services. Such statement shall present a |
221 | full and complete accounting of the operations of the covered |
222 | services for the fiscal year in accordance with generally |
223 | accepted accounting principles and utilizing full cost |
224 | accounting. The principal financial officer of the governmental |
225 | entity responsible for the preparation of this statement shall |
226 | assert in writing the following affidavit regarding this |
227 | statement: |
228 |
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229 | I am responsible for the preparation and presentation of |
230 | the attached modified statement of revenue, expenses, and |
231 | changes in net assets. I hereby assert that the above |
232 | statement presents the full and complete accounting of the |
233 | revenues and expenses of the (insert name of covered |
234 | services) for the year (period) ended (insert fiscal year |
235 | end), in accordance with Section xx, Florida Statutes. |
236 |
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237 | 2. Within 12 months after the end of each fiscal year, a |
238 | governmental entity that is providing communications services |
239 | shall retain a licensed certified public accountant to perform |
240 | and complete an examination of the modified statement of |
241 | revenue, expenses, and changes in net assets and shall deliver a |
242 | copy of the accountant's report and the affidavit referenced in |
243 | subparagraph 1. to the Director of Economic Regulation at the |
244 | Florida Public Service Commission or the director's designee, |
245 | the Department of Revenue, and the Joint Legislative Auditing |
246 | Committee. The accountant's report on such examination shall |
247 | express an opinion that the modified statement of revenue, |
248 | expenses, and changes in net assets are fairly presented in |
249 | accordance with requirements of this section. Failure of the |
250 | governmental entity to provide an unqualified examination report |
251 | within a 12-month period shall constitute noncompliance with |
252 | this section. |
253 | 3. The governmental entity shall, as specified in |
254 | subparagraph 2., provide the copy of the accountant's report and |
255 | affidavit referenced in subparagraph 1. to the Department of |
256 | Revenue, in addition to the governmental entity's regular annual |
257 | financial report and audit, required by s. 218.32, Florida |
258 | Statutes. The Department of Revenue or other required recipients |
259 | of the report and affidavit may proceed in accordance with the |
260 | procedures set forth in s. 218.32(1)(f), Florida Statutes, if |
261 | the report and affidavit are not received within the specified |
262 | time period. If such procedures are pursued, the Legislative |
263 | Auditing Committee may take the state action set forth in s. |
264 | 11.40(5), Florida Statutes. |
265 | (o) Before a person that has an interest affected by a |
266 | governmental entity's violation of this section may file an |
267 | action in circuit court for violation of this section, that |
268 | person shall file a written complaint with the governmental |
269 | entity. A private provider providing communications services to |
270 | subscribers in the governmental entity shall be deemed to have |
271 | such an interest. Within 30 days after receipt of such |
272 | complaint, the governmental entity shall respond in writing |
273 | explaining the corrective action taken or to be taken, if any. |
274 | If the governmental entity denies that it has violated this |
275 | section, its response shall include an explanation and |
276 | documentation demonstrating why the conduct complained of does |
277 | not constitute a violation. The person may file an action in |
278 | circuit court, shall be deemed to have standing and a special |
279 | injury for purposes of an action in court for violation of this |
280 | section, and shall be entitled to injunctive relief. The court |
281 | shall award to the prevailing party or parties reasonable |
282 | attorney's fees. |
283 | (3)(a) A governmental entity that provides a cable service |
284 | shall comply with the Cable Communications Policy Act of 1984, |
285 | 47 U.S.C. 521, et seq., the regulations issued by the Federal |
286 | Communications Commission under the Cable Communications Policy |
287 | Act of 1984, 47 U.S.C. 521, et seq., and all applicable state |
288 | and federal rules and regulations, including, but not limited |
289 | to, s. 166.046, Florida Statutes, and those provisions of |
290 | chapters 202, 212, and 337, Florida Statutes, which apply to a |
291 | provider of the services. |
292 | (b) A governmental entity that provides a |
293 | telecommunications service or advanced service shall comply, if |
294 | applicable, with chapter 364, Florida Statutes, and rules |
295 | adopted by the Public Service Commission; chapter 166, Florida |
296 | Statutes, and all applicable state and federal rules and |
297 | regulations, including, but not limited to, those provisions of |
298 | chapters 202, 212, and 337, Florida Statutes, which apply to a |
299 | provider of the services. |
300 | (c) A governmental entity may not exercise its power or |
301 | authority in any area, including zoning or land use regulation, |
302 | to require any person, including residents of a particular |
303 | development, to use or subscribe to any communications service |
304 | of a governmental entity. |
305 | (d) A governmental entity shall apply its ordinances, |
306 | rules, and policies, and exercise any authority under state or |
307 | federal laws, including, but not limited to, those relating to |
308 | the following subjects and without discrimination as to itself |
309 | when providing a communications service or to any private |
310 | provider of communications services: |
311 | 1. Access to public rights-of-way; and |
312 | 2. Permitting, access to, use of, and payment for use of |
313 | governmental-entity-owned poles. The governmental entity is |
314 | subject to the same terms, conditions, and fees, if any, for |
315 | access to governmental-entity-owned poles which the governmental |
316 | entity applies to a private provider for access. |
317 | (4)(a) If a governmental entity was providing, as of April |
318 | 1, 2005, advanced services, cable services, or |
319 | telecommunications services, it is not required to comply with |
320 | paragraphs (2)(a)-(f), in order to continue to provide advanced |
321 | services, cable services, or telecommunications services, but it |
322 | shall comply with and be subject to all other provisions of this |
323 | section. |
324 | (b) If a governmental entity, as of April 1, 2005, had |
325 | issued debt pledging revenues from an advanced service, cable |
326 | service, or telecommunications service, it is not required to |
327 | comply with paragraph (2)(a), (b), (c), (d), (e)1.c., or (f) in |
328 | order to provide advanced services, cable services, or |
329 | telecommunications services, respectively, but it shall comply |
330 | with and be subject to all other provisions of this section. |
331 | (c) A governmental entity that has purchased equipment |
332 | specifically for the provisioning of advanced service, cable |
333 | service, or telecommunications service by April 1, 2005, and has |
334 | received authorization by a recorded majority vote by |
335 | resolution, ordinance, or other formal means of adoption, for |
336 | the provision of an advanced service, cable service, or |
337 | telecommunications service, is not required to comply with |
338 | paragraph (2)(a), (b), (c), (d), (2)(e)1.c., or (f) in order to |
339 | provide such services, but shall comply with and be subject to |
340 | all other provisions of this section. |
341 | (5) Notwithstanding s. 542.235, Florida Statutes, or any |
342 | other law, a governmental entity that provides a communications |
343 | service is subject to the same prohibitions applicable to |
344 | private providers under ss. 542.18 and 542.19, Florida Statutes, |
345 | as it relates to providing a communications service. In |
346 | addition, this section does not confer state action immunity, or |
347 | any other antitrust immunity or exemption, on any governmental |
348 | entity providing communications services. |
349 | (6) To ensure the safe and secure transportation of |
350 | passengers and freight through an airport facility, as defined |
351 | in s. 159.27(17), Florida Statutes, exemption from this section |
352 | is granted to any airport authority or other governmental entity |
353 | that provides or is proposing to provide: |
354 | (a) Communications services only within the boundaries of |
355 | its airport layout plan, as defined in s. 333.01(6), Florida |
356 | Statutes, to subscribers which are integral and essential to the |
357 | safe and secure transportation of passengers and freight through |
358 | the airport facility. |
359 | (b) Shared-tenant service under s. 364.339, Florida |
360 | Statutes, not including dial tone, enabling subscribers to |
361 | complete calls outside the airport layout plan, to one or more |
362 | subscribers within its airport layout plan which are not |
363 | integral and essential to the safe and secure transportation of |
364 | passengers and freight through the airport facility. |
365 |
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366 | An airport authority or other governmental entity that provides |
367 | or is proposing to provide communications services to one or |
368 | more customers within its airport layout plan which are not |
369 | integral and essential to the safe and secure transportation of |
370 | passengers and freight through the airport facility, or to one |
371 | or more customers outside its airport layout plan, is not exempt |
372 | from this section. By way of example and not limitation, the |
373 | integral, essential subscribers may include airlines and |
374 | emergency service entities, and the nonintegral, nonessential |
375 | subscribers may include retail shops, restaurants, hotels, or |
376 | rental car companies. |
377 | (7) This section does not alter or affect any provisions |
378 | in the charter, code, or other governing authorities of a |
379 | governmental entity that impose additional or different |
380 | requirements on provision of communications service by a |
381 | governmental entity. Any such provisions shall apply in addition |
382 | to the applicable provisions in this section. |
383 | Section 2. If any provision of this act or its application |
384 | to any person or circumstance is held invalid, the invalidity |
385 | does not affect other provisions or applications of the act |
386 | which can be given effect without the invalid provision or |
387 | application, and to this end the provisions of this act are |
388 | severable. |
389 | Section 3. This act shall take effect upon becoming a law. |
390 |
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391 | ================ T I T L E A M E N D M E N T ============= |
392 | Remove the entire title and insert: |
393 | A bill to be entitled |
394 | An act relating to local governments; providing |
395 | definitions; providing for notice of public hearings to |
396 | consider whether the local government will provide a |
397 | communications service; requiring a governmental entity to |
398 | consider certain factors before a communications service |
399 | is provided; providing certain restrictions on revenue |
400 | bonds to finance provisioning of communications services; |
401 | requiring a local government to make available a written |
402 | business plan; providing criteria for the business plan; |
403 | setting pricing standards; providing for accounting and |
404 | books and records; requiring the governmental entity to |
405 | establish an enterprise fund; requiring the governmental |
406 | entity to maintain separate operating and capital budgets; |
407 | limiting the use of eminent-domain powers; requiring a |
408 | governmental entity to hold a public hearing to consider |
409 | certain factors if the business plan goals are not met; |
410 | requiring compliance with certain federal and state laws; |
411 | requiring a local government to treat itself the same as |
412 | it treats other providers of similar communications |
413 | services; exempting certain governmental entities from |
414 | specified provisions of the act; requiring a local |
415 | governmental provider of communications services to follow |
416 | the same prohibitions as other providers of the same |
417 | services; providing an exemption for airports under |
418 | certain conditions; recognizing preemption of a charter, |
419 | code, or other governmental authority; providing for |
420 | severability; providing an effective date. |