HB 1325

1
A bill to be entitled
2An act relating to local government economic development;
3amending s. 288.1162, F.S.; specifying criteria for
4certification for remaining available certification slot
5for professional sports franchises; providing definitions;
6providing for notice of public hearings to consider
7whether the local government will provide a communications
8service; requiring a governmental entity to consider
9certain factors before a communications service is
10provided; providing certain restrictions on revenue bonds
11to finance provisioning of communications services;
12requiring a local government to make available a written
13business plan; providing criteria for the business plan;
14setting pricing standards; providing for accounting and
15books and records; requiring the governmental entity to
16establish an enterprise fund; requiring the governmental
17entity to maintain separate operating and capital budgets;
18limiting the use of eminent-domain powers; requiring a
19governmental entity to hold a public hearing to consider
20certain factors if the business plan goals are not met;
21requiring compliance with certain federal and state laws;
22requiring a local government to treat itself the same as
23it treats other providers of similar communications
24services; exempting certain governmental entities from
25specified provisions of the act; requiring a local
26governmental provider of communications services to follow
27the same prohibitions as other providers of the same
28services; providing an exemption for airports under
29certain conditions; recognizing preemption of a charter,
30code, or other governmental authority; providing for
31severability; providing an effective date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Subsection (7) of section 288.1162, Florida
36Statutes, is amended to read:
37     288.1162  Professional sports franchises; spring training
38franchises; duties.--
39     (7)(a)  The Office of Tourism, Trade, and Economic
40Development shall notify the Department of Revenue of any
41facility certified as a facility for a new professional sports
42franchise or a facility for a retained professional sports
43franchise or as a facility for a retained spring training
44franchise. The Office of Tourism, Trade, and Economic
45Development shall certify no more than eight facilities as
46facilities for a new professional sports franchise or as
47facilities for a retained professional sports franchise and
48shall certify at least five as facilities for retained spring
49training franchises, including in such total any facilities
50certified by the Department of Commerce before July 1, 1996. The
51office may make no more than one certification for any facility.
52The office may not certify funding for less than the requested
53amount to any applicant certified as a facility for a retained
54spring training franchise.
55     (b)  Certification of an applicant under this section for
56the eighth certification for a facility for a new professional
57sports franchise or for a facility for a retained professional
58sports franchise shall be for an applicant for which the
59franchise that serves as the basis of the certification is a
60member of the National Basketball Association, has been located
61within the state since 1987, and has not been previously
62certified. This paragraph shall be repealed on July 1, 2010.
63     Section 2.  Communications services offered by governmental
64entities.--
65     (1)  As used in this section, the term:
66     (a)  "Advanced service" means high-speed-Internet-access-
67service capability in excess of 200 kilobits per second in the
68upstream or the downstream direction, including any service
69application provided over the high-speed-access service or any
70information service as defined in 47 U.S.C. s. 153(20).
71     (b)  "Cable service" has the same meaning as in 47 U.S.C.
72s. 522(6).
73     (c)  "Communications services" includes any "advanced
74service," "cable service," or "telecommunications service" and
75shall be construed in the broadest sense.
76     (d)  "Enterprise fund" means a separate fund to account for
77the operation of communications services by a local government,
78established and maintained in accordance with generally accepted
79accounting principles as prescribed by the Governmental
80Accounting Standards Board.
81     (e)  "Governmental entity" means any political subdivision
82as defined in section 1.01, Florida Statutes, including any
83county, municipality, special district, school district, or
84utility authority or other authority or any instrumentality,
85agency, unit, or department thereof. The term does not include
86an independent special district created before 1970 which has
87been granted express legislative authority to provide a
88communications service and which does not sell a communications
89service outside its district boundaries.
90     (f)  "Provide," "providing," "provision," or "provisioning"
91means offering or supplying a communications service for a fee
92or other consideration to a person, including any portion of the
93public or a private provider, but does not include service by a
94governmental entity to itself or to any other governmental law
95enforcement or governmental emergency services entity.
96     (g)  "Subscriber" means a person who receives a
97communications service.
98     (h)  "Telecommunications services" means the transmission
99of signs, signals, writing, images, sounds, messages, data, or
100other information of the user's choosing, by wire, radio, light
101waves, or other electromagnetic means, without change in the
102form or content of the information as sent and received by the
103user and regardless of the facilities used, including, without
104limitation, wireless facilities.
105     (2)(a)  Prior to a proposal to provide any provision of
106communications services, a governmental entity shall hold no
107less than two public hearing not less than 30 days apart. At
108least 30 days before the first of the two public hearings, the
109governmental entity shall give notice of the hearing in the
110predominant newspaper of general circulation in the area
111considered for service. At least 40 days before the first public
112hearing, the governmental entity shall electronically provide
113notice to the Department of Revenue and the Public Service
114Commission, which shall post the notice on the department's and
115the commission's website to be available to the public. The
116Department of Revenue shall also send the notice by United
117States Postal Service to the known addresses for all dealers of
118communications services registered with the department under
119chapter 202, Florida Statutes, or provide an electronic
120notification, if the means are available, within 10 days after
121receiving the notice. The notice shall include the time and
122place of the hearings and shall state that the purpose of the
123hearings is to consider whether the governmental entity will
124provide communications services. The notice shall include, at a
125minimum, the geographic areas proposed to be served by the
126governmental entity and the services, if any, which the
127governmental entity believes are not currently being adequately
128provided. The notice shall also state that any dealer who wishes
129to do so may appear and be heard at the public hearings.
130     (b)  At a public hearing required by this subsection, a
131governmental entity shall, at a minimum, consider:
132     1.  Whether the service that is proposed to be provided is
133currently being offered in the community and, if so, whether the
134service is generally available throughout the community.
135     2.  Whether a similar service is currently being offered in
136the community and, if so, whether the service is generally
137available throughout the community.
138     3.  If the same or a similar service is not currently
139offered, whether any other service provider proposes to offer
140the same or a similar service and, if so, what assurances that
141service provider is willing or able to offer regarding the same
142or similar service.
143     4.  The capital investment required by the governmental
144entity to provide the communications service, the estimated
145realistic cost of operation and maintenance, and, using a full
146cost-accounting method, the estimated realistic revenues and
147expenses of providing the service and the proposed method of
148financing.
149     5.  The private and public costs and benefits of providing
150the service by a private entity or a governmental entity,
151including the effect on existing and future jobs, actual
152economic development prospects, tax-base growth, education, and
153public health.
154     (c)  At one or more of the public hearings under this
155subsection, the governmental entity shall make available to the
156public a written business plan for the proposed communications
157service venture containing, at a minimum:
158     1.  The projected number of customers to be served by the
159venture.
160     2.  The geographic area to be served by the venture.
161     3.  The types of communications services to be provided.
162     4.  A plan to ensure that revenues exceed operating
163expenses and payment of principal and interest on debt within 4
164years.
165     5.  Estimated capital and operational costs and revenues
166for the first 4 years.
167     6.  Projected network modernization and technological
168upgrade plans, including estimated costs.
169     (d)  After making specific findings regarding the factors
170in paragraphs (2)(b) and (2)(c), the governmental entity may
171authorize providing a communications service by a majority
172recorded vote, by resolution, ordinance, or other formal means
173of adoption.
174     (e)  The governing body of a governmental entity may issue
175one or more bonds to finance the capital costs for facilities to
176provide a communications service. However:
177     1.  A governmental entity may only pledge revenues in
178support of the issuance of any bond to finance provision of a
179communications service:
180     a.  Within the county in which the governmental entity is
181located;
182     b.  Within an area in which the governmental entity
183provides electric service outside its home county under an
184electric service territorial agreement approved by the Public
185Service Commission before the effective date of this act; or
186     c.  If the governmental entity is a municipality or special
187district, within its corporate limits or in an area in which the
188municipality or special district provides water, wastewater, or
189electric or natural gas service, or within an urban service area
190designated in a comprehensive plan, whichever is larger, unless
191the municipality or special district obtains the consent, by a
192majority recorded vote by resolution, ordinance, or other formal
193means of adoption, of the governmental entity within the
194boundaries of which the municipality or special district
195proposes to provide service.
196
197Any governmental entity from which consent is sought pursuant to
198sub-subparagraph c. shall be located within the county in which
199the governmental entity is located for consent to be effective.
200     2.  Revenue bonds issued in order to finance provision of a
201communications service are not subject to the approval of the
202electors if the revenue bonds mature within 15 years. Revenue
203bonds issued to finance provision of a communications service
204that does not mature within 15 years shall be approved by the
205electors. The election shall be conducted as specified in
206chapter 100, Florida Statutes.
207     (f)  A governmental entity providing a communications
208service may not price any service below the cost of providing
209the service by subsidizing the communications service with
210moneys from rates paid by customers of a noncommunications
211services utility or from any other revenues. The cost standard
212for determining cross-subsidization is whether the total revenue
213from the service is less than the total long-run incremental
214cost, including direct costs and indirect costs, as allocated
215pursuant to the cost-allocation plan described in paragraph (g),
216of the service. "Total long-run incremental cost" means service-
217specific volume and nonvolume-sensitive costs.
218     (g)  A governmental entity providing a communications
219service shall keep separate and accurate books and records,
220maintained in accordance with generally accepted accounting
221principles, of a governmental entity's communication service,
222which books and records shall be made available for any audits
223of the books and records conducted under applicable law. To
224facilitate equitable distribution of indirect costs, a local
225governmental entity shall develop and follow a cost-allocation
226plan, which is a procedure for allocating direct and indirect
227costs and which is generally developed in accordance with OMB
228Circular A-87, Cost Principles for State, Local, and Indian
229Tribal Government, published by the United States Office of
230Management and Budget.
231     (h)  The governmental entity shall establish an enterprise
232fund to account for its operation of communications services.
233     (i)  The governmental entity shall adopt separate operating
234and capital budgets for its communications services.
235     (j)  A governmental entity may not use its powers of
236eminent domain under chapter 73, Florida Statutes, solely or
237primarily for the purpose of providing a communications service.
238     (k)  If, after 4 years following the initiation of the
239provision of communications services by a governmental entity or
2404 years after the effective date of this act, whichever is
241later, revenues do not exceed operating expenses and payment of
242principal and interest on the debt for a governmental entity's
243provision of communications services, no later than 60 days
244following the end of the 4-year period a governmental entity
245shall hold a public hearing at which the governmental entity
246shall do at least one of the following:
247     1.  Approve a plan to cease providing communications
248services;
249     2.  Approve a plan to dispose of the system the
250governmental entity is using to provide communications services
251and, accordingly, to cease providing communications services;
252     3.  Approve a plan to create a partnership with a private
253entity in order to achieve operations in which revenues exceed
254operating expenses and payment of principal and interest on
255debt; or
256     4.  Approve the continuing provision of communications
257services.
258     (l)  If the governmental entity chooses to continue
259providing communications services, or approves a plan provided
260in paragraph (k), but thereafter does not implement the plan,
261the governmental entity shall either develop a new business plan
262provided under paragraph (c) or provide notice of the decision
263to not pursue the provisions under paragraph (k). The new plan
264shall be submitted to the governing body for approval within 60
265days after the public hearing and shall be implemented upon
266approval. If the governing body does not approve the new plan,
267the governmental entity shall cease providing communications
268services within 12 months thereafter.
269     (m)  The governmental entity shall conduct an annual
270review at a formal public meeting to consider the progress the
271governmental entity is making toward reaching its business plan
272goals and objectives for providing communication services. At
273the public meeting, the governmental entity shall review the
274related revenues, operating expenses, and payment of interest on
275debt.
276     (n)1.  Within 12 months after the end of each fiscal year,
277a governmental entity that is providing communications services
278shall prepare a modified statement of revenues, expenses, and
279changes in net assets for the enterprise fund used to account
280for the communications services. Such statement shall present a
281full and complete accounting of the operations of the covered
282services for the fiscal year in accordance with generally
283accepted accounting principles and utilizing full cost
284accounting. The governmental entity shall provide a copy of the
285accountant's report and affidavit to the Department of Revenue,
286in addition to the governmental entity's regular annual
287financial report and audit, required by s. 218.32, Florida
288Statutes.
289     (3)(a)  A governmental entity that provides a cable service
290shall comply with the Cable Communications Policy Act of 1984,
29147 U.S.C. 521, et seq., the regulations issued by the Federal
292Communications Commission under the Cable Communications Policy
293Act of 1984, 47 U.S.C. 521, et seq., and all applicable state
294and federal rules and regulations, including, but not limited
295to, s. 166.046, Florida Statutes, and those provisions of
296chapters 202, 212, and 337, Florida Statutes, which apply to a
297provider of the services.
298     (b)  A governmental entity that provides a
299telecommunications service or advanced service shall comply, if
300applicable, with chapter 364, Florida Statutes, and rules
301adopted by the Public Service Commission; chapter 166, Florida
302Statutes, and all applicable state and federal rules and
303regulations, including, but not limited to, those provisions of
304chapters 202, 212, and 337, Florida Statutes, which apply to a
305provider of the services.
306     (c)  A governmental entity may not exercise its power or
307authority in any area, including zoning or land use regulation,
308to require any person, including residents of a particular
309development, to use or subscribe to any communications service
310of a governmental entity.
311     (d)  A governmental entity shall apply its ordinances,
312rules, and policies, and exercise any authority under state or
313federal laws, including, but not limited to, those relating to
314the following subjects and without discrimination as to itself
315when providing a communications service or to any private
316provider of communications services:
317     1.  Access to public rights-of-way; and
318     2.  Permitting, access to, use of, and payment for use of
319governmental-entity-owned poles. The governmental entity is
320subject to the same terms, conditions, and fees, if any, for
321access to governmental-entity-owned poles which the governmental
322entity applies to a private provider for access.
323     (4)(a)  If a governmental entity was providing, as of April
3241, 2005, advanced services, cable services, or
325telecommunications services, it is not required to comply with
326paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph
327(2)(d), sub-subparagraph (2)(e)1.c., or paragraph (2)(f), in
328order to continue to provide advanced services, cable services,
329or telecommunications services, respectively, but it shall
330comply with and be subject to all other provisions of this
331section.
332     (b)  If a governmental entity, as of April 1, 2005, had
333issued debt pledging revenues from an advanced service, cable
334service, or telecommunications service, it is not required to
335comply with paragraph (2)(a), (b), (c), (d), (e)1.c., or (f) in
336order to provide advanced services, cable services, or
337telecommunications services, respectively, but it shall comply
338with and be subject to all other provisions of this section.
339     (c)  A governmental entity that has purchased equipment
340specifically for the provisioning of advanced service, cable
341service, or telecommunications service by April 1, 2005, and has
342received authorization by a recorded majority vote by
343resolution, ordinance, or other formal means of adoption, for
344the provision of an advanced service, cable service, or
345telecommunications service, is not required to comply with
346paragraph (2)(a), (b), (c), (d), (2)(e)1.c., or (f) in order to
347provide advanced services, cable services, or telecommunications
348services, respectively, but shall comply with and be subject to
349all other provisions of this section.
350     (5)  Notwithstanding s. 542.235, Florida Statutes, or any
351other law, a governmental entity that provides a communications
352service is subject to the same prohibitions applicable to
353private providers under ss. 542.18 and 542.19, Florida Statutes,
354as it relates to providing a communications service. In
355addition, this section does not confer state action immunity, or
356any other antitrust immunity or exemption, on any governmental
357entity providing communications services.
358     (6)  To ensure the safe and secure transportation of
359passengers and freight through an airport facility, as defined
360in s. 159.27(17), Florida Statutes, exemption from this section
361is granted to any airport authority or other governmental entity
362that provides or is proposing to provide:
363     (a)  Communications services only within the boundaries of
364its airport layout plan, as defined in s. 333.01(6), Florida
365Statutes, to subscribers which are integral and essential to the
366safe and secure transportation of passengers and freight through
367the airport facility.
368     (b)  Shared-tenant service under s. 364.339, Florida
369Statutes, not including dial tone, enabling subscribers to
370complete calls outside the airport layout plan, to one or more
371subscribers within its airport layout plan which are not
372integral and essential to the safe and secure transportation of
373passengers and freight through the airport facility.
374
375An airport authority or other governmental entity that provides
376or is proposing to provide communications services to one or
377more customers within its airport layout plan which are not
378integral and essential to the safe and secure transportation of
379passengers and freight through the airport facility, or to one
380or more customers outside its airport layout plan, is not exempt
381from this section. By way of example and not limitation, the
382integral, essential subscribers may include airlines and
383emergency service entities, and the nonintegral, nonessential
384subscribers may include retail shops, restaurants, hotels, or
385rental car companies.
386     (7)  This section does not alter or affect any provisions
387in the charter, code, or other governing authorities of a
388governmental entity that impose additional or different
389requirements on provision of communications service by a
390governmental entity. Any such provisions shall apply in addition
391to the applicable provisions in this section.
392     Section 3.  If any provision of this act or its application
393to any person or circumstance is held invalid, the invalidity
394does not affect other provisions or applications of the act
395which can be given effect without the invalid provision or
396application, and to this end the provisions of this act are
397severable.
398     Section 4.  This act shall take effect upon becoming a law.


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