HB 1325

1
A bill to be entitled
2An act relating to local governments; providing
3definitions; providing for notice of public hearings to
4consider whether the local government will provide a
5communications service; requiring a governmental entity to
6consider certain factors before a communications service
7is provided; providing certain restrictions on revenue
8bonds to finance provisioning of communications services;
9requiring a local government to make available a written
10business plan; providing criteria for the business plan;
11setting pricing standards; providing for accounting and
12books and records; requiring the governmental entity to
13establish an enterprise fund; requiring the governmental
14entity to maintain separate operating and capital budgets;
15limiting the use of eminent-domain powers; requiring a
16governmental entity to hold a public hearing to consider
17certain factors if the business plan goals are not met;
18requiring compliance with certain federal and state laws;
19requiring a local government to treat itself the same as
20it treats other providers of similar communications
21services; exempting certain governmental entities from
22specified provisions of the act; requiring a local
23governmental provider of communications services to follow
24the same prohibitions as other providers of the same
25services; providing an exemption for airports under
26certain conditions; recognizing preemption of a charter,
27code, or other governmental authority; providing for
28severability; providing an effective date.
29
30Be It Enacted by the Legislature of the State of Florida:
31
32     Section 1.  Communications services offered by governmental
33entities.--
34     (1)  As used in this section, the term:
35     (a)  "Advanced service" means high-speed-Internet-access-
36service capability in excess of 200 kilobits per second in the
37upstream or the downstream direction, including any service
38application provided over the high-speed-access service or any
39information service as defined in 47 U.S.C. s. 153(20).
40     (b)  "Cable service" has the same meaning as in 47 U.S.C.
41s. 522(6).
42     (c)  "Communications services" includes any "advanced
43service," "cable service," or "telecommunications service" and
44shall be construed in the broadest sense.
45     (d)  "Enterprise fund" means a separate fund to account for
46the operation of communications services by a local government,
47established and maintained in accordance with generally accepted
48accounting principles as prescribed by the Governmental
49Accounting Standards Board.
50     (e)  "Governmental entity" means any political subdivision
51as defined in section 1.01, Florida Statutes, including any
52county, municipality, special district, school district, or
53utility authority or other authority or any instrumentality,
54agency, unit, or department thereof. The term does not include
55an independent special district created before 1970 which has
56been granted express legislative authority to provide a
57communications service and which does not sell a communications
58service outside its district boundaries.
59     (f)  "Provide," "providing," "provision," or "provisioning"
60means offering or supplying a communications service for a fee
61or other consideration to a person, including any portion of the
62public or a private provider, but does not include service by a
63governmental entity to itself or to any other governmental law
64enforcement or governmental emergency services entity.
65     (g)  "Subscriber" means a person who receives a
66communications service.
67     (h)  "Telecommunications services" means the transmission
68of signs, signals, writing, images, sounds, messages, data, or
69other information of the user's choosing, by wire, radio, light
70waves, or other electromagnetic means, without change in the
71form or content of the information as sent and received by the
72user and regardless of the facilities used, including, without
73limitation, wireless facilities.
74     (2)(a)  Prior to a proposal to provide any provision of
75communications services, a governmental entity shall hold no
76less than two public hearing not less than 30 days apart. At
77least 30 days before the first of the two public hearings, the
78governmental entity shall give notice of the hearing in the
79predominant newspaper of general circulation in the area
80considered for service. At least 40 days before the first public
81hearing, the governmental entity shall electronically provide
82notice to the Department of Revenue and the Public Service
83Commission, which shall post the notice on the department's and
84the commission's website. The Department of Revenue shall also
85send the notice by United States Postal Service to the known
86addresses for all dealers of communications services registered
87with the department under chapter 202, Florida Statutes, or
88provide an electronic notification, if the means are available,
89within 10 days after receiving the notice. The notice shall
90include the time and place of the hearings and shall state that
91the purpose of the hearings is to consider whether the
92governmental entity will provide communications services. The
93notice shall include, at a minimum, the geographic areas
94proposed to be served by the governmental entity and the
95services, if any, which the governmental entity believes are not
96currently being adequately provided. The notice shall also state
97that any dealer who wishes to do so may appear and be heard at
98the public hearings.
99     (b)  At a public hearing required by this subsection, a
100governmental entity shall, at a minimum, consider:
101     1.  Whether the service that is proposed to be provided is
102currently being offered in the community and, if so, whether the
103service is generally available throughout the community.
104     2.  Whether a similar service is currently being offered in
105the community and, if so, whether the service is generally
106available throughout the community.
107     3.  If the same or a similar service is not currently
108offered, whether any other service provider proposes to offer
109the same or a similar service and, if so, what assurances that
110service provider is willing or able to offer regarding the same
111or similar service.
112     4.  The capital investment required by the governmental
113entity to provide the communications service, the estimated
114realistic cost of operation and maintenance, and, using a full
115cost-accounting method, the estimated realistic revenues and
116expenses of providing the service and the proposed method of
117financing.
118     5.  The private and public costs and benefits of providing
119the service by a private entity or a governmental entity,
120including the effect on existing and future jobs, actual
121economic development prospects, tax-base growth, education, and
122public health.
123     (c)  At one or more of the public hearings under this
124subsection, the governmental entity shall make available to the
125public a written business plan for the proposed communications
126service venture containing, at a minimum:
127     1.  The projected number of customers to be served by the
128venture.
129     2.  The geographic area to be served by the venture.
130     3.  The types of communications services to be provided.
131     4.  A plan to ensure that revenues exceed operating
132expenses and payment of principal and interest on debt within 4
133years.
134     5.  Estimated capital and operational costs and revenues
135for the first 4 years.
136     6.  Projected network modernization and technological
137upgrade plans, including estimated costs.
138     (d)  After making specific findings regarding the factors
139in paragraphs (2)(b) and (2)(c), the governmental entity may
140authorize providing a communications service by a majority
141recorded vote, by resolution, ordinance, or other formal means
142of adoption.
143     (e)  The governing body of a governmental entity may issue
144one or more bonds to finance the capital costs for facilities to
145provide a communications service. However:
146     1.  A governmental entity may only pledge revenues in
147support of the issuance of any bond to finance provision of a
148communications service:
149     a.  Within the county in which the governmental entity is
150located;
151     b.  Within an area in which the governmental entity
152provides electric service outside its home county under an
153electric service territorial agreement approved by the Public
154Service Commission before the effective date of this act; or
155     c.  If the governmental entity is a municipality or special
156district, within its corporate limits or in an area in which the
157municipality or special district provides water, wastewater, or
158electric or natural gas service, or within an urban service area
159designated in a comprehensive plan, whichever is larger, unless
160the municipality or special district obtains the consent, by a
161majority recorded vote by resolution, ordinance, or other formal
162means of adoption, of the governmental entity within the
163boundaries of which the municipality or special district
164proposes to provide service.
165
166Any governmental entity from which consent is sought pursuant to
167sub-subparagraph c. shall be located within the county in which
168the governmental entity is located for consent to be effective.
169     2.  Revenue bonds issued in order to finance provision of a
170communications service are not subject to the approval of the
171electors if the revenue bonds mature within 15 years. Revenue
172bonds issued to finance provision of a communications service
173that does not mature within 15 years shall be approved by the
174electors. The election shall be conducted as specified in
175chapter 100, Florida Statutes.
176     (f)  A governmental entity providing a communications
177service may not price any service below the cost of providing
178the service by subsidizing the communications service with
179moneys from rates paid by customers of a noncommunications
180services utility or from any other revenues. The cost standard
181for determining cross-subsidization is whether the total revenue
182from the service is less than the total long-run incremental
183cost, including direct costs and indirect costs, as allocated
184pursuant to the cost-allocation plan described in paragraph (g),
185of the service. "Total long-run incremental cost" means service-
186specific volume and nonvolume-sensitive costs.
187     (g)  A governmental entity providing a communications
188service shall keep separate and accurate books and records,
189maintained in accordance with generally accepted accounting
190principles, of a governmental entity's communication service,
191which books and records shall be made available for any audits
192of the books and records conducted under applicable law. To
193facilitate equitable distribution of indirect costs, a local
194governmental entity shall develop and follow a cost-allocation
195plan in accordance with OMB Circular A-87, Cost Principles for
196State, Local, and Indian Tribal Government, published by the
197United States Office of Management and Budget.
198     (h)  The governmental entity shall establish an enterprise
199fund to account for its operation of communications services.
200     (i)  The governmental entity shall adopt separate operating
201and capital budgets for its communications services.
202     (j)  A governmental entity may not use its powers of
203eminent domain under chapter 73, Florida Statutes, solely or
204primarily for the purpose of providing a communications service.
205     (k)  If, after 4 years following the initiation of the
206provision of communications services by a governmental entity or
2074 years after the effective date of this act, whichever is
208later, revenues do not exceed operating expenses and payment of
209principal and interest on the debt for a governmental entity's
210provision of communications services, no later than 60 days
211following the end of the 4-year period a governmental entity
212shall hold a public hearing at which the governmental entity
213shall do at least one of the following:
214     1.  Approve a plan to cease providing communications
215services;
216     2.  Approve a plan to dispose of the system the
217governmental entity is using to provide communications services
218and, accordingly, to cease providing communications services;
219     3.  Approve a plan to create a partnership with a private
220entity in order to achieve operations in which revenues exceed
221operating expenses and payment of principal and interest on
222debt; or
223     4.  Approve the continuing provision of communications
224services.
225     (l)  If the governmental entity chooses to continue
226providing communications services, or approves a plan provided
227in paragraph (k), but thereafter does not implement the plan,
228the governmental entity shall either develop a new business plan
229provided under paragraph (c) or provide notice of the decision
230to not pursue the provisions under paragraph (k). The new plan
231shall be submitted to the governing body for approval within 60
232days after the public hearing and shall be implemented upon
233approval. If the governing body does not approve the new plan,
234the governmental entity shall cease providing communications
235services within 12 months thereafter.
236     (m)  The governmental entity shall conduct an annual
237review at a formal public meeting to consider the progress the
238governmental entity is making toward reaching its business plan
239goals and objectives for providing communication services. At
240the public meeting, the governmental entity shall review the
241related revenues, operating expenses, and payment of interest on
242debt.
243     (n)1.  Within 12 months after the end of each fiscal year,
244a governmental entity that is providing communications services
245shall prepare a modified statement of revenues, expenses, and
246changes in net assets for the enterprise fund used to account
247for the communications services. Such statement shall present a
248full and complete accounting of the operations of the covered
249services for the fiscal year in accordance with generally
250accepted accounting principles and utilizing full cost
251accounting. The principal financial officer of the governmental
252entity responsible for the preparation of this statement shall
253assert in writing the following affidavit regarding this
254statement:
255
256I am responsible for the preparation and presentation of
257the attached modified statement of revenue, expenses, and
258changes in net assets. I hereby assert that the above
259statement presents the full and complete accounting of the
260revenues and expenses of the (insert name of covered
261services) for the year (period) ended (insert fiscal year
262end), in accordance with Section xx, Florida Statutes.
263
264     2.  Within 12 months after the end of each fiscal year, a
265governmental entity that is providing communications services
266shall retain a licensed certified public accountant to perform
267and complete an examination of the modified statement of
268revenue, expenses, and changes in net assets and shall deliver a
269copy of the accountant's report and the affidavit referenced in
270subparagraph 1. to the Director of Economic Regulation at the
271Florida Public Service Commission or the director's designee,
272the Department of Revenue, and the Joint Legislative Auditing
273Committee. The accountant's report on such examination shall
274express an opinion that the modified statement of revenue,
275expenses, and changes in net assets are fairly presented in
276accordance with requirements of this section. Failure of the
277governmental entity to provide an unqualified examination report
278within a 12-month period shall constitute noncompliance with
279this section.
280     3.  The governmental entity shall, as specified in
281subparagraph 2., provide the copy of the accountant's report and
282affidavit referenced in subparagraph 1. to the Department of
283Revenue, in addition to the governmental entity's regular annual
284financial report and audit, required by s. 218.32, Florida
285Statutes. The Department of Revenue or other required recipients
286of the report and affidavit may proceed in accordance with the
287procedures set forth in s. 218.32(1)(f), Florida Statutes, if
288the report and affidavit are not received within the specified
289time period. If such procedures are pursued, the Legislative
290Auditing Committee may take the state action set forth in s.
29111.40(5), Florida Statutes.
292     (o)  Before a person that has an interest affected by a
293governmental entity's violation of this section may file an
294action in circuit court for violation of this section, that
295person shall file a written complaint with the governmental
296entity. A private provider providing communications services to
297subscribers in the governmental entity shall be deemed to have
298such an interest. Within 30 days after receipt of such
299complaint, the governmental entity shall respond in writing
300explaining the corrective action taken or to be taken, if any.
301If the governmental entity denies that it has violated this
302section, its response shall include an explanation and
303documentation demonstrating why the conduct complained of does
304not constitute a violation. The person may file an action in
305circuit court, shall be deemed to have standing and a special
306injury for purposes of an action in court for violation of this
307section, and shall be entitled to injunctive relief. The court
308shall award to the prevailing party or parties reasonable
309attorney's fees.
310     (3)(a)  A governmental entity that provides a cable service
311shall comply with the Cable Communications Policy Act of 1984,
31247 U.S.C. 521, et seq., the regulations issued by the Federal
313Communications Commission under the Cable Communications Policy
314Act of 1984, 47 U.S.C. 521, et seq., and all applicable state
315and federal rules and regulations, including, but not limited
316to, s. 166.046, Florida Statutes, and those provisions of
317chapters 202, 212, and 337, Florida Statutes, which apply to a
318provider of the services.
319     (b)  A governmental entity that provides a
320telecommunications service or advanced service shall comply, if
321applicable, with chapter 364, Florida Statutes, and rules
322adopted by the Public Service Commission; chapter 166, Florida
323Statutes, and all applicable state and federal rules and
324regulations, including, but not limited to, those provisions of
325chapters 202, 212, and 337, Florida Statutes, which apply to a
326provider of the services.
327     (c)  A governmental entity may not exercise its power or
328authority in any area, including zoning or land use regulation,
329to require any person, including residents of a particular
330development, to use or subscribe to any communications service
331of a governmental entity.
332     (d)  A governmental entity shall apply its ordinances,
333rules, and policies, and exercise any authority under state or
334federal laws, including, but not limited to, those relating to
335the following subjects and without discrimination as to itself
336when providing a communications service or to any private
337provider of communications services:
338     1.  Access to public rights-of-way; and
339     2.  Permitting, access to, use of, and payment for use of
340governmental-entity-owned poles. The governmental entity is
341subject to the same terms, conditions, and fees, if any, for
342access to governmental-entity-owned poles which the governmental
343entity applies to a private provider for access.
344     (4)(a)  If a governmental entity was providing, as of April
3451, 2005, advanced services, cable services, or
346telecommunications services, it is not required to comply with
347paragraphs (2)(a)-(f), in order to continue to provide advanced
348services, cable services, or telecommunications services,
349respectively, but it shall comply with and be subject to all
350other provisions of this section.
351     (b)  If a governmental entity, as of April 1, 2005, had
352issued debt pledging revenues from an advanced service, cable
353service, or telecommunications service, it is not required to
354comply with paragraph (2)(a), (b), (c), (d), (e)1.c., or (f) in
355order to provide advanced services, cable services, or
356telecommunications services, respectively, but it shall comply
357with and be subject to all other provisions of this section.
358     (c)  A governmental entity that has purchased equipment
359specifically for the provisioning of advanced service, cable
360service, or telecommunications service by April 1, 2005, and has
361received authorization by a recorded majority vote by
362resolution, ordinance, or other formal means of adoption, for
363the provision of an advanced service, cable service, or
364telecommunications service, is not required to comply with
365paragraph (2)(a), (b), (c), (d), (2)(e)1.c., or (f) in order to
366provide advanced services, cable services, or telecommunications
367services, respectively, but shall comply with and be subject to
368all other provisions of this section.
369     (5)  Notwithstanding s. 542.235, Florida Statutes, or any
370other law, a governmental entity that provides a communications
371service is subject to the same prohibitions applicable to
372private providers under ss. 542.18 and 542.19, Florida Statutes,
373as it relates to providing a communications service. In
374addition, this section does not confer state action immunity, or
375any other antitrust immunity or exemption, on any governmental
376entity providing communications services.
377     (6)  To ensure the safe and secure transportation of
378passengers and freight through an airport facility, as defined
379in s. 159.27(17), Florida Statutes, exemption from this section
380is granted to any airport authority or other governmental entity
381that provides or is proposing to provide:
382     (a)  Communications services only within the boundaries of
383its airport layout plan, as defined in s. 333.01(6), Florida
384Statutes, to subscribers which are integral and essential to the
385safe and secure transportation of passengers and freight through
386the airport facility.
387     (b)  Shared-tenant service under s. 364.339, Florida
388Statutes, not including dial tone, enabling subscribers to
389complete calls outside the airport layout plan, to one or more
390subscribers within its airport layout plan which are not
391integral and essential to the safe and secure transportation of
392passengers and freight through the airport facility.
393
394An airport authority or other governmental entity that provides
395or is proposing to provide communications services to one or
396more customers within its airport layout plan which are not
397integral and essential to the safe and secure transportation of
398passengers and freight through the airport facility, or to one
399or more customers outside its airport layout plan, is not exempt
400from this section. By way of example and not limitation, the
401integral, essential subscribers may include airlines and
402emergency service entities, and the nonintegral, nonessential
403subscribers may include retail shops, restaurants, hotels, or
404rental car companies.
405     (7)  This section does not alter or affect any provisions
406in the charter, code, or other governing authorities of a
407governmental entity that impose additional or different
408requirements on provision of communications service by a
409governmental entity. Any such provisions shall apply in addition
410to the applicable provisions in this section.
411     Section 2.  If any provision of this act or its application
412to any person or circumstance is held invalid, the invalidity
413does not affect other provisions or applications of the act
414which can be given effect without the invalid provision or
415application, and to this end the provisions of this act are
416severable.
417     Section 3.  This act shall take effect upon becoming a law.


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