(LATE FILED)Amendment
Bill No. 1325
Amendment No. 066693
CHAMBER ACTION
Senate House
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1Representative(s) Attkisson offered the following:
2
3     Amendment (with title amendment)
4     Remove everything after the enacting clause and insert:
5     Section 1.  Communications services offered by governmental
6entities.--
7     (1)  As used in this section, the term:
8     (a)  "Advanced service" means high-speed-Internet-access-
9service capability in excess of 200 kilobits per second in the
10upstream or the downstream direction, including any service
11application provided over the high-speed-access service or any
12information 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.
14s. 522(6).
15     (c)  "Communications services" includes any "advanced
16service," "cable service," or "telecommunications service" and
17shall be construed in the broadest sense.
18     (d)  "Enterprise fund" means a separate fund to account for
19the operation of communications services by a local government,
20established and maintained in accordance with generally accepted
21accounting principles as prescribed by the Governmental
22Accounting Standards Board.
23     (e)  "Governmental entity" means any political subdivision
24as defined in section 1.01, Florida Statutes, including any
25county, municipality, special district, school district, or
26utility authority or other authority or any instrumentality,
27agency, unit, or department thereof. The term does not include
28an independent special district created before 1970 which has
29been granted express legislative authority to provide a
30communications service and which does not sell a communications
31service outside its district boundaries.
32     (f)  "Provide," "providing," "provision," or "provisioning"
33means offering or supplying a communications service for a fee
34or other consideration to a person, including any portion of the
35public or a private provider, but does not include service by a
36governmental entity to itself or to any other governmental law
37enforcement or governmental emergency services entity.
38     (g)  "Subscriber" means a person who receives a
39communications service.
40     (h)  "Telecommunications services" means the transmission
41of signs, signals, writing, images, sounds, messages, data, or
42other information of the user's choosing, by wire, radio, light
43waves, or other electromagnetic means, without change in the
44form or content of the information as sent and received by the
45user and regardless of the facilities used, including, without
46limitation, wireless facilities.
47     (2)(a)  Prior to a proposal to provide any provision of
48communications services, a governmental entity shall hold no
49less than two public hearing not less than 30 days apart. At
50least 30 days before the first of the two public hearings, the
51governmental entity shall give notice of the hearing in the
52predominant newspaper of general circulation in the area
53considered for service. At least 40 days before the first public
54hearing, the governmental entity shall electronically provide
55notice to the Department of Revenue and the Public Service
56Commission, which shall post the notice on the department's and
57the commission's website. The Department of Revenue shall also
58send the notice by United States Postal Service to the known
59addresses for all dealers of communications services registered
60with the department under chapter 202, Florida Statutes, or
61provide an electronic notification, if the means are available,
62within 10 days after receiving the notice. The notice shall
63include the time and place of the hearings and shall state that
64the purpose of the hearings is to consider whether the
65governmental entity will provide communications services. The
66notice shall include, at a minimum, the geographic areas
67proposed to be served by the governmental entity and the
68services, if any, which the governmental entity believes are not
69currently being adequately provided. The notice shall also state
70that any dealer who wishes to do so may appear and be heard at
71the public hearings.
72     (b)  At a public hearing required by this subsection, a
73governmental entity shall, at a minimum, consider:
74     1.  Whether the service that is proposed to be provided is
75currently being offered in the community and, if so, whether the
76service is generally available throughout the community.
77     2.  Whether a similar service is currently being offered in
78the community and, if so, whether the service is generally
79available throughout the community.
80     3.  If the same or a similar service is not currently
81offered, whether any other service provider proposes to offer
82the same or a similar service and, if so, what assurances that
83service provider is willing or able to offer regarding the same
84or similar service.
85     4.  The capital investment required by the governmental
86entity to provide the communications service, the estimated
87realistic cost of operation and maintenance, and, using a full
88cost-accounting method, the estimated realistic revenues and
89expenses of providing the service and the proposed method of
90financing.
91     5.  The private and public costs and benefits of providing
92the service by a private entity or a governmental entity,
93including the effect on existing and future jobs, actual
94economic development prospects, tax-base growth, education, and
95public health.
96     (c)  At one or more of the public hearings under this
97subsection, the governmental entity shall make available to the
98public a written business plan for the proposed communications
99service venture containing, at a minimum:
100     1.  The projected number of customers to be served by the
101venture.
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
105expenses and payment of principal and interest on debt within 4
106years.
107     5.  Estimated capital and operational costs and revenues
108for the first 4 years.
109     6.  Projected network modernization and technological
110upgrade plans, including estimated costs.
111     (d)  After making specific findings regarding the factors
112in paragraphs (2)(b) and (2)(c), the governmental entity may
113authorize providing a communications service by a majority
114recorded vote, by resolution, ordinance, or other formal means
115of adoption.
116     (e)  The governing body of a governmental entity may issue
117one or more bonds to finance the capital costs for facilities to
118provide a communications service. However:
119     1.  A governmental entity may only pledge revenues in
120support of the issuance of any bond to finance provision of a
121communications service:
122     a.  Within the county in which the governmental entity is
123located;
124     b.  Within an area in which the governmental entity
125provides electric service outside its home county under an
126electric service territorial agreement approved by the Public
127Service Commission before the effective date of this act; or
128     c.  If the governmental entity is a municipality or special
129district, within its corporate limits or in an area in which the
130municipality or special district provides water, wastewater, or
131electric or natural gas service, or within an urban service area
132designated in a comprehensive plan, whichever is larger, unless
133the municipality or special district obtains the consent, by a
134majority recorded vote by resolution, ordinance, or other formal
135means of adoption, of the governmental entity within the
136boundaries of which the municipality or special district
137proposes to provide service.
138
139Any governmental entity from which consent is sought pursuant to
140sub-subparagraph c. shall be located within the county in which
141the governmental entity is located for consent to be effective.
142     2.  Revenue bonds issued in order to finance provision of a
143communications service are not subject to the approval of the
144electors if the revenue bonds mature within 15 years. Revenue
145bonds issued to finance provision of a communications service
146that does not mature within 15 years shall be approved by the
147electors. The election shall be conducted as specified in
148chapter 100, Florida Statutes.
149     (f)  A governmental entity providing a communications
150service may not price any service below the cost of providing
151the service by subsidizing the communications service with
152moneys from rates paid by customers of a noncommunications
153services utility or from any other revenues. The cost standard
154for determining cross-subsidization is whether the total revenue
155from the service is less than the total long-run incremental
156cost, including direct costs and indirect costs, as allocated
157pursuant to the cost-allocation plan described in paragraph (g),
158of the service. "Total long-run incremental cost" means service-
159specific volume and nonvolume-sensitive costs.
160     (g)  A governmental entity providing a communications
161service shall keep separate and accurate books and records,
162maintained in accordance with generally accepted accounting
163principles, of a governmental entity's communication service,
164which books and records shall be made available for any audits
165of the books and records conducted under applicable law. To
166facilitate equitable distribution of indirect costs, a local
167governmental entity shall develop and follow a cost-allocation
168plan in accordance with OMB Circular A-87, Cost Principles for
169State, Local, and Indian Tribal Government, published by the
170United States Office of Management and Budget.
171     (h)  The governmental entity shall establish an enterprise
172fund to account for its operation of communications services.
173     (i)  The governmental entity shall adopt separate operating
174and capital budgets for its communications services.
175     (j)  A governmental entity may not use its powers of
176eminent domain under chapter 73, Florida Statutes, solely or
177primarily for the purpose of providing a communications service.
178     (k)  If, after 4 years following the initiation of the
179provision of communications services by a governmental entity or
1804 years after the effective date of this act, whichever is
181later, revenues do not exceed operating expenses and payment of
182principal and interest on the debt for a governmental entity's
183provision of communications services, no later than 60 days
184following the end of the 4-year period a governmental entity
185shall hold a public hearing at which the governmental entity
186shall do at least one of the following:
187     1.  Approve a plan to cease providing communications
188services;
189     2.  Approve a plan to dispose of the system the
190governmental entity is using to provide communications services
191and, accordingly, to cease providing communications services;
192     3.  Approve a plan to create a partnership with a private
193entity in order to achieve operations in which revenues exceed
194operating expenses and payment of principal and interest on
195debt; or
196     4.  Approve the continuing provision of communications
197services.
198     (l)  If the governmental entity chooses to continue
199providing communications services, or approves a plan provided
200in paragraph (k), but thereafter does not implement the plan,
201the governmental entity shall either develop a new business plan
202provided under paragraph (c) or provide notice of the decision
203to not pursue the provisions under paragraph (k). The new plan
204shall be submitted to the governing body for approval within 60
205days after the public hearing and shall be implemented upon
206approval. If the governing body does not approve the new plan,
207the governmental entity shall cease providing communications
208services within 12 months thereafter.
209     (m)  The governmental entity shall conduct an annual review
210at a formal public meeting to consider the progress the
211governmental entity is making toward reaching its business plan
212goals and objectives for providing communication services. At
213the public meeting, the governmental entity shall review the
214related revenues, operating expenses, and payment of interest on
215debt.
216     (n)1.  Within 12 months after the end of each fiscal year,
217a governmental entity that is providing communications services
218shall prepare a modified statement of revenues, expenses, and
219changes in net assets for the enterprise fund used to account
220for the communications services. Such statement shall present a
221full and complete accounting of the operations of the covered
222services for the fiscal year in accordance with generally
223accepted accounting principles and utilizing full cost
224accounting. The principal financial officer of the governmental
225entity responsible for the preparation of this statement shall
226assert in writing the following affidavit regarding this
227statement:
228
229I am responsible for the preparation and presentation of
230the attached modified statement of revenue, expenses, and
231changes in net assets. I hereby assert that the above
232statement presents the full and complete accounting of the
233revenues and expenses of the (insert name of covered
234services) for the year (period) ended (insert fiscal year
235end), in accordance with Section xx, Florida Statutes.
236
237     2.  Within 12 months after the end of each fiscal year, a
238governmental entity that is providing communications services
239shall retain a licensed certified public accountant to perform
240and complete an examination of the modified statement of
241revenue, expenses, and changes in net assets and shall deliver a
242copy of the accountant's report and the affidavit referenced in
243subparagraph 1. to the Director of Economic Regulation at the
244Florida Public Service Commission or the director's designee,
245the Department of Revenue, and the Joint Legislative Auditing
246Committee. The accountant's report on such examination shall
247express an opinion that the modified statement of revenue,
248expenses, and changes in net assets are fairly presented in
249accordance with requirements of this section. Failure of the
250governmental entity to provide an unqualified examination report
251within a 12-month period shall constitute noncompliance with
252this section.
253     3.  The governmental entity shall, as specified in
254subparagraph 2., provide the copy of the accountant's report and
255affidavit referenced in subparagraph 1. to the Department of
256Revenue, in addition to the governmental entity's regular annual
257financial report and audit, required by s. 218.32, Florida
258Statutes. The Department of Revenue or other required recipients
259of the report and affidavit may proceed in accordance with the
260procedures set forth in s. 218.32(1)(f), Florida Statutes, if
261the report and affidavit are not received within the specified
262time period. If such procedures are pursued, the Legislative
263Auditing Committee may take the state action set forth in s.
26411.40(5), Florida Statutes.
265     (o)  Before a person that has an interest affected by a
266governmental entity's violation of this section may file an
267action in circuit court for violation of this section, that
268person shall file a written complaint with the governmental
269entity. A private provider providing communications services to
270subscribers in the governmental entity shall be deemed to have
271such an interest. Within 30 days after receipt of such
272complaint, the governmental entity shall respond in writing
273explaining the corrective action taken or to be taken, if any.
274If the governmental entity denies that it has violated this
275section, its response shall include an explanation and
276documentation demonstrating why the conduct complained of does
277not constitute a violation. The person may file an action in
278circuit court, shall be deemed to have standing and a special
279injury for purposes of an action in court for violation of this
280section, and shall be entitled to injunctive relief. The court
281shall award to the prevailing party or parties reasonable
282attorney's fees.
283     (3)(a)  A governmental entity that provides a cable service
284shall comply with the Cable Communications Policy Act of 1984,
28547 U.S.C. 521, et seq., the regulations issued by the Federal
286Communications Commission under the Cable Communications Policy
287Act of 1984, 47 U.S.C. 521, et seq., and all applicable state
288and federal rules and regulations, including, but not limited
289to, s. 166.046, Florida Statutes, and those provisions of
290chapters 202, 212, and 337, Florida Statutes, which apply to a
291provider of the services.
292     (b)  A governmental entity that provides a
293telecommunications service or advanced service shall comply, if
294applicable, with chapter 364, Florida Statutes, and rules
295adopted by the Public Service Commission; chapter 166, Florida
296Statutes, and all applicable state and federal rules and
297regulations, including, but not limited to, those provisions of
298chapters 202, 212, and 337, Florida Statutes, which apply to a
299provider of the services.
300     (c)  A governmental entity may not exercise its power or
301authority in any area, including zoning or land use regulation,
302to require any person, including residents of a particular
303development, to use or subscribe to any communications service
304of a governmental entity.
305     (d)  A governmental entity shall apply its ordinances,
306rules, and policies, and exercise any authority under state or
307federal laws, including, but not limited to, those relating to
308the following subjects and without discrimination as to itself
309when providing a communications service or to any private
310provider of communications services:
311     1.  Access to public rights-of-way; and
312     2.  Permitting, access to, use of, and payment for use of
313governmental-entity-owned poles. The governmental entity is
314subject to the same terms, conditions, and fees, if any, for
315access to governmental-entity-owned poles which the governmental
316entity applies to a private provider for access.
317     (4)(a)  If a governmental entity was providing, as of April
3181, 2005, advanced services, cable services, or
319telecommunications services, it is not required to comply with
320paragraphs (2)(a)-(f), in order to continue to provide advanced
321services, cable services, or telecommunications services, but it
322shall comply with and be subject to all other provisions of this
323section.
324     (b)  If a governmental entity, as of April 1, 2005, had
325issued debt pledging revenues from an advanced service, cable
326service, or telecommunications service, it is not required to
327comply with paragraph (2)(a), (b), (c), (d), (e)1.c., or (f) in
328order to provide advanced services, cable services, or
329telecommunications services, respectively, but it shall comply
330with and be subject to all other provisions of this section.
331     (c)  A governmental entity that has purchased equipment
332specifically for the provisioning of advanced service, cable
333service, or telecommunications service by April 1, 2005, and has
334received authorization by a recorded majority vote by
335resolution, ordinance, or other formal means of adoption, for
336the provision of an advanced service, cable service, or
337telecommunications service, is not required to comply with
338paragraph (2)(a), (b), (c), (d), (2)(e)1.c., or (f) in order to
339provide such services, but shall comply with and be subject to
340all other provisions of this section.
341     (5)  Notwithstanding s. 542.235, Florida Statutes, or any
342other law, a governmental entity that provides a communications
343service is subject to the same prohibitions applicable to
344private providers under ss. 542.18 and 542.19, Florida Statutes,
345as it relates to providing a communications service. In
346addition, this section does not confer state action immunity, or
347any other antitrust immunity or exemption, on any governmental
348entity providing communications services.
349     (6)  To ensure the safe and secure transportation of
350passengers and freight through an airport facility, as defined
351in s. 159.27(17), Florida Statutes, exemption from this section
352is granted to any airport authority or other governmental entity
353that provides or is proposing to provide:
354     (a)  Communications services only within the boundaries of
355its airport layout plan, as defined in s. 333.01(6), Florida
356Statutes, to subscribers which are integral and essential to the
357safe and secure transportation of passengers and freight through
358the airport facility.
359     (b)  Shared-tenant service under s. 364.339, Florida
360Statutes, not including dial tone, enabling subscribers to
361complete calls outside the airport layout plan, to one or more
362subscribers within its airport layout plan which are not
363integral and essential to the safe and secure transportation of
364passengers and freight through the airport facility.
365
366An airport authority or other governmental entity that provides
367or is proposing to provide communications services to one or
368more customers within its airport layout plan which are not
369integral and essential to the safe and secure transportation of
370passengers and freight through the airport facility, or to one
371or more customers outside its airport layout plan, is not exempt
372from this section. By way of example and not limitation, the
373integral, essential subscribers may include airlines and
374emergency service entities, and the nonintegral, nonessential
375subscribers may include retail shops, restaurants, hotels, or
376rental car companies.
377     (7)  This section does not alter or affect any provisions
378in the charter, code, or other governing authorities of a
379governmental entity that impose additional or different
380requirements on provision of communications service by a
381governmental entity. Any such provisions shall apply in addition
382to the applicable provisions in this section.
383     Section 2.  If any provision of this act or its application
384to any person or circumstance is held invalid, the invalidity
385does not affect other provisions or applications of the act
386which can be given effect without the invalid provision or
387application, and to this end the provisions of this act are
388severable.
389     Section 3.  This act shall take effect upon becoming a law.
390
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
394An act relating to local governments; providing
395definitions; providing for notice of public hearings to
396consider whether the local government will provide a
397communications service; requiring a governmental entity to
398consider certain factors before a communications service
399is provided; providing certain restrictions on revenue
400bonds to finance provisioning of communications services;
401requiring a local government to make available a written
402business plan; providing criteria for the business plan;
403setting pricing standards; providing for accounting and
404books and records; requiring the governmental entity to
405establish an enterprise fund; requiring the governmental
406entity to maintain separate operating and capital budgets;
407limiting the use of eminent-domain powers; requiring a
408governmental entity to hold a public hearing to consider
409certain factors if the business plan goals are not met;
410requiring compliance with certain federal and state laws;
411requiring a local government to treat itself the same as
412it treats other providers of similar communications
413services; exempting certain governmental entities from
414specified provisions of the act; requiring a local
415governmental provider of communications services to follow
416the same prohibitions as other providers of the same
417services; providing an exemption for airports under
418certain conditions; recognizing preemption of a charter,
419code, or other governmental authority; providing for
420severability; providing an effective date.


CODING: Words stricken are deletions; words underlined are additions.