Florida Senate - 2005                        SENATOR AMENDMENT
    Bill No. HB 1325, 2nd Eng.
                        Barcode 834670
                            CHAMBER ACTION
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11  Senator Constantine moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         On page 2, line 12, delete everything after the
15  enacting clause
16  
17  and insert:  
18         Section 1.  Communications services offered by
19  governmental entities.--
20         (1)  As used in this section, the term:
21         (a)  "Advanced service" means
22  high-speed-Internet-access-service capability in excess of 200
23  kilobits per second in the upstream or the downstream
24  direction, including any service application provided over the
25  high-speed-access service or any information service as
26  defined in 47 U.S.C. s. 153(20).
27         (b)  "Cable service" has the same meaning as in 47
28  U.S.C. s. 522(6).
29         (c)  "Communications services" includes any "advanced
30  service," "cable service," or "telecommunications service" and
31  shall be construed in the broadest sense.
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Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 (d) "Enterprise fund" means a separate fund to account 2 for the operation of communications services by a local 3 government, established and maintained in accordance with 4 generally accepted accounting principles as prescribed by the 5 Governmental Accounting Standards Board. 6 (e) "Governmental entity" means any political 7 subdivision as defined in section 1.01, Florida Statutes, 8 including any county, municipality, special district, school 9 district, utility authority or other authority or any 10 instrumentality, agency, unit or department thereof. The term 11 does not include an independent special district created 12 before 1970 which has been granted express legislative 13 authority to provide a communications service and which does 14 not sell a communications service outside its district 15 boundaries. 16 (f) "Provide," "providing," "provision," or 17 "provisioning" means offering or supplying a communications 18 service for a fee or other consideration to a person, 19 including any portion of the public or private provider, but 20 does not include service by an entity to itself or to any 21 other governmental entity. 22 (g) "Subscriber" means a person who receives a 23 communications service. 24 (h) "Telecommunications services" means the 25 transmission of signs, signals, writing, images, sounds, 26 messages, data, or other information of the user's choosing, 27 by wire, radio, light waves, or other electromagnetic means, 28 without change in the form or content of the information as 29 sent and received by the user and regardless of the facilities 30 used, including, without limitation, wireless facilities. 31 (2)(a) A governmental entity that proposes to provide 2 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 a communications service shall hold no less than two public 2 hearings, which shall be held not less than 30 days apart. At 3 least 30 days before the first of the two public hearings, the 4 governmental entity must give notice of the hearing in the 5 predominant newspaper of general circulation in the area 6 considered for service. At least 40 days before the first 7 public hearing, the governmental entity must electronically 8 provide notice to the Department of Revenue and the Public 9 Service Commission, which shall post the notice on the 10 department's and the commission's website to be available to 11 the public. The Department of Revenue shall also send the 12 notice by United States Postal Service to the known addresses 13 for all dealers of communications services registered with the 14 department under chapter 202, Florida Statutes, or provide an 15 electronic notification, if the means are available, within 10 16 days after receiving the notice. The notice must include the 17 time and place of the hearings and must state that the purpose 18 of the hearings is to consider whether the governmental entity 19 will provide communications services. The notice must include, 20 at a minimum, the geographic areas proposed to be served by 21 the governmental entity and the services, if any, which the 22 governmental entity believes are not currently being 23 adequately provided. The notice must also state that any 24 dealer who wishes to do so may appear and be heard at the 25 public hearings. 26 (b) At a public hearing required by this subsection, a 27 governmental entity must, at a minimum, consider: 28 1. Whether the service that is proposed to be provided 29 is currently being offered in the community and, if so, 30 whether the service is generally available throughout the 31 community. 3 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 2. Whether a similar service is currently being 2 offered in the community and, if so, whether the service is 3 generally available throughout the community. 4 3. If the same or similar service is not currently 5 offered, whether any other service provider proposes to offer 6 the same or a similar service and, if so, what assurances that 7 service provider is willing or able to offer regarding the 8 same or similar service. 9 4. The capital investment required by the government 10 entity to provide the communications service, the estimated 11 realistic cost of operation and maintenance and, using a full 12 cost-accounting method, the estimated realistic revenues and 13 expenses of providing the service and the proposed method of 14 financing. 15 5. The private and public costs and benefits of 16 providing the service by a private entity or a governmental 17 entity, including the affect on existing and future jobs, 18 actual economic development prospects, tax-base growth, 19 education, and public health. 20 (c) At one or more of the public hearings under this 21 subsection, the governmental entity must make available to the 22 public a written business plan for the proposed communications 23 service venture containing, at a minimum: 24 1. The projected number of subscribers to be served by 25 the venture. 26 2. The geographic area to be served by the venture. 27 3. The types of communications services to be 28 provided. 29 4. A plan to ensure that revenues exceed operating 30 expenses and payment of principal and interest on debt within 31 4 years. 4 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 5. Estimated capital and operational costs and 2 revenues for the first 4 years. 3 6. Projected network modernization and technological 4 upgrade plans, including estimated costs. 5 (d) After making specific findings regarding the 6 factors in paragraphs (b) and (c), the governmental entity may 7 authorize providing a communications service by a majority 8 recorded vote and by resolution, ordinance, or other formal 9 means of adoption. 10 (e) The governing body of a governmental entity may 11 issue one or more bonds to finance the capital costs for 12 facilities to provide a communications service. However: 13 1. A governmental entity may only pledge revenues in 14 support of the issuance of any bond to finance providing a 15 communications service: 16 a. Within the county in which the governmental entity 17 is located; 18 b. Within an area in which the governmental entity 19 provides electric service outside its home county under an 20 electric service territorial agreement approved by the Public 21 Service Commission before the effective date of this act; or 22 c. If the governmental entity is a municipality or 23 special district, within its corporate limits or in an area in 24 which the municipality or special district provides water, 25 wastewater, electric, or natural gas service, or within an 26 urban service area designated in a comprehensive plan, 27 whichever is larger, unless the municipality or special 28 district obtains the consent of the governmental entity within 29 the boundaries of which the municipality or special district 30 proposes to provide service. Any governmental entity from 31 which consent is sought shall be the county or shall be 5 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 located within the county in which the governmental entity is 2 located for consent to be effective. 3 2. Revenue bonds issued in order to finance providing 4 a communications service are not subject to the approval of 5 the electors if the revenue bonds mature within 15 years. 6 Revenue bonds issued to finance providing a communications 7 service that does not mature within 15 years must be approved 8 by the electors. The election must be conducted as specified 9 in chapter 100, Florida Statutes. 10 (f) A governmental entity providing a communications 11 service may not price any service below the cost of providing 12 the service by subsidizing the communications service with 13 moneys from rates paid by subscribers of a noncommunications 14 services utility or from any other revenues. The cost standard 15 for determining cross-subsidization is whether the total 16 revenue from the service is less than the total long-run 17 incremental cost of the service. Total long-run incremental 18 cost means service-specific volume and nonvolume-sensitive 19 costs. 20 (g) A governmental entity providing a communications 21 service must comply with the requirements of section 218.32, 22 Florida Statutes, and shall keep separate and accurate books 23 and records, maintained in accordance with generally accepted 24 accounting principles, of a governmental entity's 25 communication service, and they shall be made available for 26 any audits of the books and records conducted under applicable 27 law. To facilitate equitable distribution of indirect costs, a 28 local government shall develop and follow a cost-allocation 29 plan, which is a procedure for allocating direct and indirect 30 costs and which is generally developed in accordance with OMB 31 Circular A-87, Cost Principles for State, Local, and Indian 6 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 Tribal Government, published by the United States Office of 2 Management and Budget. 3 (h) The governmental entity shall establish an 4 enterprise fund to account for its operation of communications 5 services. 6 (i) The governmental entity shall adopt separate 7 operating and capital budgets for its communications services. 8 (j) A governmental entity may not use its powers of 9 eminent domain under chapter 73, Florida Statutes, solely or 10 primarily for the purpose of providing a communications 11 service. 12 (k) The governmental entity shall conduct an annual 13 review at a formal public meeting to consider the progress the 14 governmental entity is making toward reaching its business 15 plan goals and objectives for providing communication 16 services. At the public meeting the governmental entity shall 17 review the related revenues, operating expenses, and payment 18 of interest on debt. 19 (l) If, after 4 years following the initiation of the 20 provision of communications services by a governmental entity 21 or 4 years after the effective date of this act, whichever is 22 later, revenues do not exceed operating expenses and payment 23 of principal and interest on the debt for a governmental 24 entity's provision of communications services, no later than 25 60 days following the end of the 4-year period a governmental 26 entity shall hold a public hearing at which the governmental 27 entity shall do at least one of the following: 28 1. Approve a plan to cease providing communications 29 services; 30 2. Approve a plan to dispose of the system the 31 governmental entity is using to provide communications 7 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 services and, accordingly, to cease providing communications 2 services; 3 3. Approve a plan to create a partnership with a 4 private entity in order to achieve operations in which 5 revenues exceed operating expenses and payment of principal 6 and interest on debt; or 7 4. Approve the continuing provision of communications 8 services. 9 (3)(a) A governmental entity that provides a cable 10 service shall comply with the Cable Communications Policy Act 11 of 1984, 47 U.S.C. 521, et seq., the regulations issued by the 12 Federal Communications Commission under the Cable 13 Communications Policy Act of 1984, 47 U.S.C. 521, et seq., and 14 all applicable state and federal rules and regulations, 15 including, but not limited to, section 166.046, Florida 16 Statutes, and those provisions of chapters 202, 212, and 337, 17 Florida Statutes, which apply to a provider of the services. 18 (b) A governmental entity that provides a 19 telecommunications service or advanced service must comply, if 20 applicable, with chapter 364, Florida Statutes, and rules 21 adopted by the Public Service Commission; chapter 166, Florida 22 Statutes; and all applicable state and federal rules and 23 regulations, including, but not limited to, those provisions 24 of chapters 202, 212, and 337, Florida Statutes, which apply 25 to a provider of the services. 26 (c) A governmental entity may not exercise its power 27 or authority in any area, including zoning or land use 28 regulation, to require any person, including residents of a 29 particular development, to use or subscribe to any 30 communication service of a governmental entity. 31 (d) A governmental entity shall apply its ordinances, 8 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 rules, and policies, and exercise any authority under state or 2 federal laws, including, but not limited to, those relating to 3 the following subjects and without discrimination as to itself 4 when providing a communications service or to any private 5 provider of communications services: 6 1. Access to public rights-of-way; and 7 2. Permitting, access to, use of, and payment for use 8 of governmental entity-owned poles. The governmental entity is 9 subject to the same terms, conditions, and fees, if any, for 10 access to government-owned poles which the governmental entity 11 applies to a private provider for access. 12 (4)(a) If a governmental entity was providing, as of 13 April 1, 2005, advanced services, cable services, or 14 telecommunications services, then it is not required to comply 15 with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), 16 paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph 17 (2)(f), paragraph (2)(k), or paragraph (2)(l), in order to 18 continue to provide advanced services, cable services, or 19 telecommunications services, respectively, but it must comply 20 with and be subject to all other provisions of this section. 21 (b) If a governmental entity, as of April 1, 2005, had 22 issued debt pledging revenues from an advanced service, cable 23 service, or telecommunications service, then it is not 24 required to comply with paragraph (2)(a), paragraph (2)(b), 25 paragraph (2)(c), paragraph (2)(d), sub-subparagraph 26 (2)(e)1.c., paragraph (2)(f), paragraph (2)(k), or paragraph 27 (2)(l), in order to provide advanced services, cable services, 28 or telecommunications services, respectively, but it must 29 comply with and be subject to all other provisions of this 30 section. 31 (c) If a governmental entity, as of April 1, 2005, has 9 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 purchased equipment specifically for the provisioning of 2 advanced service, cable service, or telecommunication service, 3 and, as of May 6, 2005, has authorized the providing of an 4 advanced service, cable service, or telecommunication service, 5 then it is not required to comply with paragraph (2)(a), 6 paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), 7 sub-subparagraph (2)(e)1.c., paragraph (2)(f), paragraph 8 (2)(k), or paragraph (2)(l) in order to provide advanced 9 service, cable service, or telecommunication service, 10 respectively, but it must comply with and be subject to all 11 other provisions of this section. 12 13 This subsection does not relieve a governmental entity from 14 complying with subsection (5). 15 (5) Notwithstanding section 542.235, Florida Statutes, 16 or any other law, a governmental entity that provides a 17 communications service is subject to the same prohibitions 18 applicable to private providers under sections 542.18 and 19 542.19, Florida Statutes, as it relates to providing a 20 communications service. In addition, the exemption from 21 complying with paragraph (2)(f), does not confer state action 22 immunity, or any other antitrust immunity or exemption, on any 23 governmental entity providing communications services. 24 (6) To ensure the safe and secure transportation of 25 passengers and freight through an airport facility, as defined 26 in section 159.27(17), Florida Statutes, an airport authority 27 or other governmental entity that provides or is proposing to 28 provide communications services only within the boundaries of 29 its airport layout plan, as defined in section 333.01(6), 30 Florida Statutes, to subscribers which are integral and 31 essential to the safe and secure transportation of passengers 10 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 and freight through the airport facility, is exempt from this 2 section. An airport authority or other governmental entity 3 that provides or is proposing to provide shared-tenant service 4 under section 364.339, Florida Statutes, but not dial tone 5 enabling subscribers to complete calls outside the airport 6 layout plan, to one or more subscribers within its airport 7 layout plan which are not integral and essential to the safe 8 and secure transportation of passengers and freight through 9 the airport facility is exempt from this section. An airport 10 authority or other governmental entity that provides or is 11 proposing to provide communications services to one or more 12 subscribers within its airport layout plan which are not 13 integral and essential to the safe and secure transportation 14 of passengers and freight through the airport facility, or to 15 one or more subscribers outside its airport layout plan, is 16 not exempt from this section. By way of example and not 17 limitation, the integral, essential subscribers may include 18 airlines and emergency service entities, and the nonintegral, 19 nonessential subscribers may include retail shops, 20 restaurants, hotels, or rental car companies. 21 (7) This section does not alter or affect any 22 provision in the charter, code, or other governing authority 23 of a governmental entity that impose additional or different 24 requirements on provision of communications service by a 25 governmental entity. Any such provisions shall apply in 26 addition to the applicable provisions in this section. 27 Section 2. If any provision of section 1 of this act 28 or its application to any person or circumstance is held 29 invalid, the invalidity does not affect other provisions or 30 applications of the act which can be given effect without the 31 invalid provision or application, and to this end the 11 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 provisions of this act are severable. 2 3 4 ================ T I T L E A M E N D M E N T =============== 5 And the title is amended as follows: 6 On page 1, line 1, delete everything before the 7 enacting clause 8 9 and insert: 10 A bill to be entitled 11 An act relating to local governments; providing 12 definitions; providing for notice of public 13 hearings to consider whether the local 14 government will provide a communications 15 service; requiring a governmental entity to 16 take certain action before a communications 17 service is provided; providing certain 18 restrictions on revenue bonds to finance 19 provisioning of communications services; 20 requiring a local government to make available 21 a written business plan; providing criteria for 22 the business plan; setting pricing standards; 23 providing for accounting and books and records; 24 requiring the governmental entity to establish 25 an enterprise fund; requiring the governmental 26 entity to maintain separate operating and 27 capital budgets; limiting the use of 28 eminent-domain powers; requiring a governmental 29 entity to hold a public hearing to consider 30 certain factors if the business plan goals are 31 not met; requiring compliance with certain 12 6:33 PM 05/03/05 h1325.22cu.00q
Florida Senate - 2005 SENATOR AMENDMENT Bill No. HB 1325, 2nd Eng. Barcode 834670 1 federal and state laws; requiring local 2 government to treat itself the same as it 3 treats other providers of similar 4 communications services; exempting certain 5 governmental entities from specified provisions 6 of the act; requiring a local government 7 provider of communications services to follow 8 the same prohibitions as other providers of the 9 same services; providing an exemption for 10 airports under certain conditions; recognizing 11 preemption of a charter, code, or other 12 governmental authority; providing for 13 severability; providing for repeal; providing 14 an effective date. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 13 6:33 PM 05/03/05 h1325.22cu.00q