| 1 | The Commerce Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to governmental authority in communication |
| 7 | services; creating the Governmental Authority Provision |
| 8 | for Communication Services Act of 2005; providing |
| 9 | definitions; authorizing governmental authorities to |
| 10 | provide communication services in certain circumstances; |
| 11 | providing requirements for the provision of communication |
| 12 | services; requiring a referendum for the provision of such |
| 13 | services; requiring regulatory compliance by governmental |
| 14 | authorities and service providers; providing for the use |
| 15 | of certain structures and facilities; authorizing |
| 16 | governmental authorities to secure funding for certain |
| 17 | costs; authorizing governmental authorities providing |
| 18 | specific services prior to a date certain to continue to |
| 19 | offer those specific services; providing for the payment |
| 20 | of taxes on certain acquired entities; providing |
| 21 | severability; providing an effective date. |
| 22 |
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| 23 | Be It Enacted by the Legislature of the State of Florida: |
| 24 |
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| 25 | Section 1. Governmental authority provision of |
| 26 | communication services.-- |
| 27 | (1) This section may be cited as the "Governmental |
| 28 | Authority Provision of Communication Services Act of 2005." |
| 29 | (2) As used in this section: |
| 30 | (a) "Advanced service" means high-speed Internet access |
| 31 | service capability in excess of 144 kilobits per second in the |
| 32 | upstream or the downstream direction, including any service |
| 33 | application provided over the high-speed access service or any |
| 34 | information service as defined in 47 U.S.C. s. 153(20), using |
| 35 | any technology or medium. |
| 36 | (b) "Covered service" means an advanced service, cable |
| 37 | service, or telecommunications service and should be construed |
| 38 | in the broadest sense. |
| 39 | (c) "Cable service" has the same meaning as in 47 U.S.C. |
| 40 | s. 522(6). |
| 41 | (d) "Governmental authority" means any political |
| 42 | subdivision as defined in s. 1.01, Florida Statutes, and any |
| 43 | utility authority, other authority, board, branch, department, |
| 44 | or unit thereof. The term includes any person owned, operated, |
| 45 | or controlled by a governmental authority or in which a |
| 46 | governmental authority otherwise has an interest, whether direct |
| 47 | or indirect. The term does not include an airport authority or |
| 48 | other airport governmental entity which provides communication |
| 49 | services to itself and its tenant within the boundaries of its |
| 50 | airport layout plan as defined in s. 333.01(6), Florida |
| 51 | Statutes. |
| 52 | (e) "Omitted service" means a covered service that a |
| 53 | governmental authority determines is desired by the authority's |
| 54 | residents but is not being provided to the residents by any |
| 55 | private provider of covered services. |
| 56 | (f) "Person" has the same meaning as defined in s. 1.01, |
| 57 | Florida Statutes. |
| 58 | (g) "Private provider" means a provider of covered |
| 59 | services that is not a governmental authority. |
| 60 | (h) "Providing," "provide," or "provision," with respect |
| 61 | to a covered service, means offering or supplying a service for |
| 62 | a fee or other consideration to a person, including any portion |
| 63 | of the public or a governmental authority or private provider. A |
| 64 | provider is a person that provides a covered service. |
| 65 | (i) "Subscriber" means a person who receives a covered |
| 66 | service. |
| 67 | (j) "Supplying," with respect to a covered service, means |
| 68 | actually supplying a service for a fee or other consideration to |
| 69 | a person, including any portion of the public or a governmental |
| 70 | authority or private provider. |
| 71 | (k) "Telecommunications services" means the transmission |
| 72 | of signs, signals, writing, images, sounds, messages, data, or |
| 73 | other information of the user's choosing, by wire, radio, light |
| 74 | waves, or other electromagnetic means, without change in the |
| 75 | form or content of the information as sent and received by the |
| 76 | user and regardless of the facilities used, and including fixed |
| 77 | and mobile terrestrial wireless technologies or applications. |
| 78 | (3) Except as specified in subsection (4), no governmental |
| 79 | authority shall provide a covered service or a facility used to |
| 80 | provide a covered service. The foregoing prohibition shall not |
| 81 | apply to, and shall not prohibit a governmental authority from |
| 82 | supplying, a covered service, or a facility used to provide a |
| 83 | covered service, for internal operational needs, |
| 84 | intergovernmental communications, and public service |
| 85 | communications. |
| 86 | (4)(a) Any governmental authority that is supplying a |
| 87 | covered service on May 1, 2005, shall be permitted to continue |
| 88 | supplying such service; however, the governmental authority may |
| 89 | not extend or expand its services or service areas for existing |
| 90 | or new subscribers. |
| 91 | (b) If a governmental authority determines that there are |
| 92 | omitted services, the governmental authority may commence |
| 93 | providing the omitted services only upon the following |
| 94 | conditions in the following order: |
| 95 | 1. The governmental authority provides written notice to |
| 96 | all dealers of communications services registered under chapter |
| 97 | 202, Florida Statutes, with the Department of Revenue describing |
| 98 | the omitted services. |
| 99 | 2. No provider commences to provide the noticed omitted |
| 100 | services or other substantially similar services within 120 days |
| 101 | after the date of the written notice. |
| 102 | 3. The governmental authority retains a feasibility |
| 103 | consultant to assess, in a written report, the feasibility of |
| 104 | the governmental authority's provision of the omitted services, |
| 105 | including consideration of the capital investment in facilities |
| 106 | to be used to provide the omitted services; the expenditure of |
| 107 | funds for labor, financing, and administering the proposed |
| 108 | omitted services; using full-cost accounting, the projected |
| 109 | annual operating expenses and revenues; and the governmental |
| 110 | authority's proposed method of financing. |
| 111 | 4. If the feasibility study indicates that the |
| 112 | governmental authority's provision of the omitted services is |
| 113 | feasible, the governing body schedules a public hearing to be |
| 114 | held to consider the feasibility study, to afford the public an |
| 115 | opportunity to offer comments on whether the governmental |
| 116 | authority should provide one or more of the noticed omitted |
| 117 | services, and to then vote on whether to proceed. |
| 118 | 5. If the governing body votes in favor of proceeding, it |
| 119 | calls an election on whether the governmental authority may |
| 120 | provide the omitted services that were the subject of the |
| 121 | governing body's vote. The notice of the election shall include, |
| 122 | with any other information required by law, a summary of the |
| 123 | omitted services and a statement that the feasibility study is |
| 124 | available for inspection and copying at a designated location. |
| 125 | The ballot at the election shall pose the question substantially |
| 126 | as follows: "Shall [insert name of the governmental authority] |
| 127 | operate a business providing [telecovered or advanced services, |
| 128 | or cable services, as applicable (meaning those services |
| 129 | identified in the governing body's vote)] to the inhabitants of |
| 130 | the [governmental authority] at a total cost of approximately |
| 131 | [insert amount from feasibility study] per year?" |
| 132 | (c) The ballot proposition may not take effect until |
| 133 | submitted to the electors and approved by a majority of those |
| 134 | voting on the ballot. |
| 135 | (d) If a majority of the electors vote to approve the |
| 136 | ballot question, the governmental authority may thereafter |
| 137 | provide the omitted services that were referenced in the ballot |
| 138 | question. |
| 139 | (e) Any governmental authority that issued public debt |
| 140 | guaranteed by the revenue of any covered service prior to the |
| 141 | effective date of this law may continue to offer the specific |
| 142 | services offered as of March 1, 2005, to existing customers or |
| 143 | any other residents within the geographic boundaries of the |
| 144 | governmental authority. |
| 145 | (5)(a) A governmental authority that provides a cable |
| 146 | service shall comply with the Cable Communications Policy Act of |
| 147 | 1984, 47 U.S.C. ss. 521 et seq.; the regulations issued by the |
| 148 | Federal Communications Commission under the Cable Communications |
| 149 | Policy Act of 1984, 47 U.S.C. ss. 521 et seq.; and all |
| 150 | applicable state and federal rules and regulations, including, |
| 151 | but not limited, to s. 166.046, Florida Statutes, and those |
| 152 | provisions of chapters 202, 212, and 337, Florida Statutes, |
| 153 | applicable to a provider of such services. |
| 154 | (b) A governmental authority that provides a |
| 155 | telecommunications service or advanced service shall comply, if |
| 156 | applicable, with chapter 364, Florida Statutes, and rules |
| 157 | adopted by the Florida Public Service Commission; chapter 166, |
| 158 | Florida Statutes; and all applicable state and federal rules and |
| 159 | regulations, including, but not limited to, those provisions of |
| 160 | chapters 202, 212, and 337, Florida Statutes, applicable to a |
| 161 | provider of such services. |
| 162 | (c) Exercise of a governmental authority's power or |
| 163 | authority in any area, including zoning or land use, to require |
| 164 | use by any person, including residents of a particular |
| 165 | development, of any of the governmental authority's covered |
| 166 | services is prohibited. |
| 167 | (d) A governmental authority shall apply the governmental |
| 168 | authority's ordinances, rules, and policies and exercise any |
| 169 | authority under state or federal laws, including those relating |
| 170 | to the following subjects, without discrimination as to itself |
| 171 | and any private provider of covered services: |
| 172 | 1. Allowing access to and use of public rights-of-way. |
| 173 | 2. Allowing access to, use of, and payment for use of |
| 174 | governmental authority-owned or controlled poles, conduits, |
| 175 | easements, and similar facilities, such that the governmental |
| 176 | authority shall be subject to the same terms, conditions, and |
| 177 | fees, if any, for access to such poles, conduits, easements, or |
| 178 | similar facilities that the governmental authority applies to a |
| 179 | private provider for such access. |
| 180 | (e) A governmental authority may not pledge any revenues |
| 181 | in support of the issuance of any bonds to finance the provision |
| 182 | of covered services outside the governmental authority's |
| 183 | geographical boundaries. The governing body of a governmental |
| 184 | authority may, upon approval by a vote of the electors, issue |
| 185 | one or more bonds to finance the capital costs for facilities to |
| 186 | provide covered services. The election shall be conducted as |
| 187 | specified in chapter 100, Florida Statutes. Any bonds issued to |
| 188 | finance the governmental authority's provision of covered |
| 189 | services shall be secured and paid solely from the revenues |
| 190 | generated by the governmental authority from its provision of |
| 191 | covered services. A governmental authority may not pay any such |
| 192 | bonds, or any origination, financing, or other costs associated |
| 193 | with such bonds, from the general funds or other enterprises of |
| 194 | the governmental authority or from the proceeds of bonds secured |
| 195 | and to be paid by the general taxing powers of the governmental |
| 196 | authority. This paragraph shall not apply to bonds issued by a |
| 197 | governmental authority prior to the effective date of this |
| 198 | section. |
| 199 | (f) Notwithstanding s. 542.235, Florida Statutes, or any |
| 200 | other provision of law, a governmental authority that provides |
| 201 | covered services is subject to the same prohibitions applicable |
| 202 | to private providers under ss. 542.18 and 542.19, Florida |
| 203 | Statutes. |
| 204 | (6) If a governmental authority acquires any tax-paying |
| 205 | entity that is providing water or wastewater services, the |
| 206 | governmental authority must continue to pay the applicable taxes |
| 207 | levied upon the entity. |
| 208 | (7) In all decisions concerning governmental authority |
| 209 | relating to the acquisition of, or contracting with, covered |
| 210 | services, water services, or wastewater services, when all |
| 211 | factors are comparable, the Florida Public Service Commission |
| 212 | shall rule in favor of tax-paying entities. |
| 213 | (8) If any provisions of this section or the application |
| 214 | of any provision of this section is found invalid, the remainder |
| 215 | of this section shall be given effect without the invalid |
| 216 | provision or application. |
| 217 | Section 2. This act shall take effect upon becoming a law. |