| 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 |
|
| 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 |
|
| 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 |
|
| 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 |
|
| 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. |