Senate Bill sb2068c1

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    Florida Senate - 2005                           CS for SB 2068

    By the Committee on Communications and Public Utilities; and
    Senator Constantine




    579-1917-05

  1                      A bill to be entitled

  2         An act relating to telecommunications; amending

  3         s. 364.01, F.S.; specifying the exclusive

  4         jurisdiction of the Florida Public Service

  5         Commission to regulate telecommunications

  6         companies; providing that state laws governing

  7         business and consumer protection be applied to

  8         communications activities that are not

  9         regulated by the commission; revising

10         provisions governing the exclusive jurisdiction

11         of the commission; creating s. 364.011, F.S.;

12         specifying certain services that are exempt

13         from oversight by the commission; creating s.

14         364.012, F.S.; requiring the commission to

15         coordinate with federal agencies; providing

16         that ch. 364, F.S., does not limit or modify

17         certain duties of a local exchange carrier;

18         creating s. 364.013, F.S.; requiring that

19         broadband service remain free of state and

20         local regulation; requiring that

21         voice-over-Internet protocol remain free of

22         regulation, except as specifically provided in

23         ch. 364, F.S., or by federal law; amending s.

24         364.02, F.S.; defining the terms "broadband

25         service" and "VoIP"; redefining the term

26         "service"; amending s. 364.0361, F.S.;

27         prohibiting a local government from regulating

28         voice-over-Internet protocol regardless of the

29         platform or provider; amending s. 364.10, F.S.;

30         revising the income threshold for eligibility

31         for Lifeline service; repealing s. 364.502,

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    Florida Senate - 2005                           CS for SB 2068
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 1         F.S., relating to video programming services;

 2         amending s. 364.335, F.S.; increasing to $500

 3         from $250 the maximum allowable filing fee for

 4         certification of telecommunications carriers;

 5         amending s. 364.336, F.S.; authorizing the

 6         Public Service Commission to establish a

 7         minimum fee of up to $1,000; authorizing

 8         different fees for different types of services

 9         provided by telecommunications companies;

10         amending ss. 196.012, 199.183, 212.08, 290.007,

11         350.0605, 364.602, and 489.103, F.S.;

12         conforming cross-references; providing an

13         effective date.

14  

15  Be It Enacted by the Legislature of the State of Florida:

16  

17         Section 1.  Section 364.01, Florida Statutes, is

18  amended to read:

19         364.01  Powers of commission, legislative intent.--

20         (1)  The Florida Public Service Commission shall

21  exercise over and in relation to telecommunications companies

22  the powers conferred by this chapter.

23         (2)  It is the legislative intent to give exclusive

24  jurisdiction in all matters set forth in this chapter to the

25  Florida Public Service Commission in regulating

26  telecommunications companies, and such preemption shall

27  supersede any local or special act or municipal charter where

28  any conflict of authority may exist.  However, the provisions

29  of this chapter shall not affect the authority and powers

30  granted in s. 166.231(9) or s. 337.401.

31  

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 1         (3)  Communications activities that are not regulated

 2  by the Florida Public Service Commission, including, but not

 3  limited to, VoIP, wireless, and broadband, are subject to this

 4  state's generally applicable business regulation and deceptive

 5  trade practices and consumer protection laws, as enforced by

 6  the appropriate state authority or through actions in the

 7  judicial system. This chapter does not limit the availability

 8  to any party of any remedy or defense under state or federal

 9  antitrust laws. The Legislature finds that the competitive

10  provision of telecommunications services, including local

11  exchange telecommunications service, is in the public interest

12  and will provide customers with freedom of choice, encourage

13  the introduction of new telecommunications service, encourage

14  technological innovation, and encourage investment in

15  telecommunications infrastructure.  The Legislature further

16  finds that the transition from the monopoly provision of local

17  exchange service to the competitive provision thereof will

18  require appropriate regulatory oversight to protect consumers

19  and provide for the development of fair and effective

20  competition, but nothing in this chapter shall limit the

21  availability to any party of any remedy under state or federal

22  antitrust laws.  The Legislature further finds that changes in

23  regulations allowing increased competition in

24  telecommunications services could provide the occasion for

25  increases in the telecommunications workforce; therefore, it

26  is in the public interest that competition in

27  telecommunications services lead to a situation that enhances

28  the high-technological skills and the economic status of the

29  telecommunications workforce. The Legislature further finds

30  that the provision of voice-over-Internet protocol (VOIP) free

31  

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    Florida Senate - 2005                           CS for SB 2068
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 1  of unnecessary regulation, regardless of the provider, is in

 2  the public interest.

 3         (4)  The commission shall exercise its exclusive

 4  jurisdiction in order to:

 5         (a)  Protect the public health, safety, and welfare by

 6  ensuring that basic local telecommunications services are

 7  available to all consumers in the state at reasonable and

 8  affordable prices.

 9         (b)  Encourage competition through flexible regulatory

10  treatment among providers of telecommunications services in

11  order to ensure the availability of the widest possible range

12  of consumer choice in the provision of all telecommunications

13  services.

14         (c)  Protect the public health, safety, and welfare by

15  ensuring that monopoly services provided by telecommunications

16  companies continue to be subject to effective price, rate, and

17  service regulation.

18         (d)  Promote competition by encouraging innovation and

19  investment in new entrants into telecommunications markets and

20  by allowing a transitional period in which new and emerging

21  technologies entrants are subject to a reduced lesser level of

22  regulatory oversight than local exchange telecommunications

23  companies.

24         (e)  Encourage all providers of telecommunications

25  services to introduce new or experimental telecommunications

26  services free of unnecessary regulatory restraints.

27         (f)  Eliminate any rules or and/or regulations which

28  will delay or impair the transition to competition.

29         (g)  Ensure that all providers of telecommunications

30  services are treated fairly, by preventing anticompetitive

31  behavior and eliminating unnecessary regulatory restraint.

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 1         (h)  Recognize the continuing emergence of a

 2  competitive telecommunications environment through the

 3  flexible regulatory treatment of competitive

 4  telecommunications services, where appropriate, if doing so

 5  does not reduce the availability of adequate basic local

 6  telecommunications service to all citizens of the state at

 7  reasonable and affordable prices, if competitive

 8  telecommunications services are not subsidized by monopoly

 9  telecommunications services, and if all monopoly services are

10  available to all competitors on a nondiscriminatory basis.

11         (i)  Continue its historical role as a surrogate for

12  competition for monopoly services provided by local exchange

13  telecommunications companies.

14         Section 2.  Section 364.011, Florida Statutes, is

15  created to read:

16         364.011  Exemptions from commission jurisdiction.--The

17  following services are exempt from oversight by the

18  commission, except to the extent delineated in this chapter or

19  specifically authorized by federal law:

20         (1)  Intrastate interexchange telecommunications

21  services.

22         (2)  Broadband services, regardless of the provider,

23  platform, or protocol.

24         (3)  VoIP.

25         (4)  Wireless telecommunications, including commercial

26  mobile radio service providers.

27         Section 3.  Section 364.012, Florida Statutes, is

28  created to read:

29         364.012  Consistency with federal law.--

30         (1)  In order to promote commission coordination with

31  federal policymakers and regulatory agencies, the commission

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 1  shall maintain continuous liaisons with appropriate federal

 2  agencies whose policy decisions and rulemaking authority

 3  affect those telecommunications companies over which the

 4  commission has jurisdiction. The commission is encouraged to

 5  participate in the proceedings of federal agencies in cases in

 6  which the state's consumers may be affected and to convey the

 7  commission's policy positions and information requirements in

 8  order to achieve greater efficiency in regulation.

 9         (2)  This chapter does not limit or modify the duties

10  of a local exchange carrier to provide unbundled access to

11  network elements or the commission's authority to arbitrate

12  and enforce interconnection agreements to the extent that

13  those elements are required under 47 U.S.C. ss. 251 and 252,

14  and under any regulations issued by the Federal Communications

15  Commission at rates determined in accordance with the

16  standards established by the Federal Communications Commission

17  pursuant to 47 C.F.R. ss. 51.503-51.513, inclusive of any

18  successor regulation or successor forbearance of regulation.

19         Section 4.  Section 364.013, Florida Statutes, is

20  created to read:

21         364.013  Emerging and advanced services.--Broadband

22  service shall remain free of state and local regulation,

23  regardless of the provider, platform, or protocol. In

24  addition, the provision of voice-over-Internet protocol (VoIP)

25  shall be free of regulation, except as delineated in this

26  chapter or as specifically authorized by federal law,

27  regardless of the provider, platform, or protocol.

28         Section 5.  Section 364.02, Florida Statutes, is

29  amended to read:

30         364.02  Definitions.--As used in this chapter:

31  

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    Florida Senate - 2005                           CS for SB 2068
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 1         (1)  "Basic local telecommunications service" means

 2  voice-grade, flat-rate residential, and flat-rate single-line

 3  business local exchange services which provide dial tone,

 4  local usage necessary to place unlimited calls within a local

 5  exchange area, dual tone multifrequency dialing, and access to

 6  the following:  emergency services such as "911," all locally

 7  available interexchange companies, directory assistance,

 8  operator services, relay services, and an alphabetical

 9  directory listing. For a local exchange telecommunications

10  company, the such term shall include any extended area service

11  routes, and extended calling service in existence or ordered

12  by the commission on or before July 1, 1995.

13         (2)  "Broadband service" means any service that

14  consists of or includes the offering of the capability to

15  transmit or receive information at a rate that is not less

16  than 200 kilobits per second and either:

17         (a)  Is used to provide access to the Internet; or

18         (b)  Provides computer processing, information storage,

19  information content, or protocol conversion in combination

20  with the service.

21  

22  The definition of broadband service does not include any

23  intrastate telecommunications services that have been tariffed

24  with the commission on or before January 1, 2005.

25         (3)(2)  "Commercial mobile radio service provider"

26  means a commercial mobile radio service provider as defined by

27  and pursuant to 47 U.S.C. ss. 153(n) and 332(d).

28         (4)(3)  "Commission" means the Florida Public Service

29  Commission.

30         (5)(4)  "Competitive local exchange telecommunications

31  company" means any company certificated by the commission to

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 1  provide local exchange telecommunications services in this

 2  state on or after July 1, 1995.

 3         (6)(5)  "Corporation" includes a corporation, company,

 4  association, or joint stock association.

 5         (7)(6)  "Intrastate interexchange telecommunications

 6  company" means any entity that provides intrastate

 7  interexchange telecommunications services.

 8         (8)(7)  "Local exchange telecommunications company"

 9  means any company certificated by the commission to provide

10  local exchange telecommunications service in this state on or

11  before June 30, 1995.

12         (9)(8)  "Monopoly service" means a telecommunications

13  service for which there is no effective competition, either in

14  fact or by operation of law.

15         (10)(9)  "Nonbasic service" means any

16  telecommunications service provided by a local exchange

17  telecommunications company other than a basic local

18  telecommunications service, a local interconnection

19  arrangement described in s. 364.16, or a network access

20  service described in s. 364.163.

21         (11)(10)  "Operator service" includes, but is not

22  limited to, billing or completion of third-party,

23  person-to-person, collect, or calling card or credit card

24  calls through the use of a live operator or automated

25  equipment.

26         (12)(11)  "Operator service provider" means a person

27  who furnishes operator service through a call aggregator.

28         (13)(12)  "Service" is to be construed in its broadest

29  and most inclusive sense. The term "service" does not include

30  broadband service or voice-over-Internet protocol service for

31  purposes of regulation by the commission. Nothing herein shall

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 1  affect the rights and obligations of any entity related to the

 2  payment of switched network access rates or other intercarrier

 3  compensation, if any, related to voice-over-Internet protocol

 4  service. Notwithstanding the provisions of this subsection,

 5  the commission may arbitrate, enforce, or approve

 6  interconnection agreements, and resolve disputes, as provided

 7  by 47 U.S.C. ss. 251 and 252, or any other applicable federal

 8  law or regulation. The duties of a local exchange

 9  telecommunications company to provide unbundled network

10  elements, interconnection, collocation arrangements, or any

11  other service, right, or benefit to any party, regardless of

12  the technology, are those that the company is obligated to

13  extend or provide under applicable federal law and

14  regulations.

15         (14)(13)  "Telecommunications company" includes every

16  corporation, partnership, and person and their lessees,

17  trustees, or receivers appointed by any court whatsoever, and

18  every political subdivision in the state, offering two-way

19  telecommunications service to the public for hire within this

20  state by the use of a telecommunications facility. The term

21  "telecommunications company" does not include:

22         (a)  An entity which provides a telecommunications

23  facility exclusively to a certificated telecommunications

24  company;

25         (b)  An entity which provides a telecommunications

26  facility exclusively to a company which is excluded from the

27  definition of a telecommunications company under this

28  subsection;

29         (c)  A commercial mobile radio service provider;

30         (d)  A facsimile transmission service;

31  

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 1         (e)  A private computer data network company not

 2  offering service to the public for hire;

 3         (f)  A cable television company providing cable service

 4  as defined in 47 U.S.C. s. 522; or

 5         (g)  An intrastate interexchange telecommunications

 6  company.

 7  

 8  However, each commercial mobile radio service provider and

 9  each intrastate interexchange telecommunications company shall

10  continue to be liable for any taxes imposed under pursuant to

11  chapters 202, 203, and 212 and any fees assessed under

12  pursuant to ss. 364.025 and 364.336. Each intrastate

13  interexchange telecommunications company shall continue to be

14  subject to ss. 364.04, 364.10(3)(a) and (d), 364.163, 364.285,

15  364.501, 364.603, and 364.604, shall provide the commission

16  with such current information as the commission deems

17  necessary to contact and communicate with the company, shall

18  continue to pay intrastate switched network access rates or

19  other intercarrier compensation to the local exchange

20  telecommunications company or the competitive local exchange

21  telecommunications company for the origination and termination

22  of interexchange telecommunications service, and shall reduce

23  its intrastate long distance toll rates in accordance with s.

24  364.163(2).

25         (15)(14)  "Telecommunications facility" includes real

26  estate, easements, apparatus, property, and routes used and

27  operated to provide two-way telecommunications service to the

28  public for hire within this state.

29         (16)  "VoIP" means the voice-over-Internet protocol as

30  that term is defined in federal law.

31  

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 1         Section 6.  Section 364.0361, Florida Statutes, is

 2  amended to read:

 3         364.0361  Local government authority; nondiscriminatory

 4  exercise.--A local government shall treat each

 5  telecommunications company in a nondiscriminatory manner when

 6  exercising its authority to grant franchises to a

 7  telecommunications company or to otherwise establish

 8  conditions or compensation for the use of rights-of-way or

 9  other public property by a telecommunications company. A local

10  government may not directly or indirectly regulate the terms

11  and conditions, including, but not limited to, the operating

12  systems, qualifications, services, service quality, service

13  territory, and prices, applicable to or in connection with the

14  provision of any voice-over-Internet protocol, broadband or

15  information service, regardless of the platform, provider, or

16  protocol. This section does not relieve a provider from any

17  obligations under s. 166.046 or s. 337.401.

18         Section 7.  Paragraph (a) of subsection (3) of section

19  364.10, Florida Statutes, is amended to read:

20         364.10  Undue advantage to person or locality

21  prohibited; Lifeline service.--

22         (3)(a)  Effective September 1, 2003, any local exchange

23  telecommunications company authorized by the commission to

24  reduce its switched network access rate under pursuant to s.

25  364.164 shall have tariffed and shall provide Lifeline service

26  to any otherwise eligible customer or potential customer who

27  meets an income eligibility test at 135 125 percent or less of

28  the federal poverty income guidelines for Lifeline customers.

29  The Such a test for eligibility must augment, rather than

30  replace, the eligibility standards established by federal law

31  and based on participation in certain low-income assistance

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 1  programs. Each intrastate interexchange telecommunications

 2  company shall, effective September 1, 2003, file a tariff

 3  providing at a minimum the intrastate interexchange

 4  telecommunications carrier's current Lifeline benefits and

 5  exemptions to Lifeline customers who meet the income

 6  eligibility test set forth in this subsection. The Office of

 7  Public Counsel shall certify and maintain claims submitted by

 8  a customer for eligibility under the income test authorized by

 9  this subsection.

10         Section 8.  Section 364.502, Florida Statutes, is

11  repealed.

12         Section 9.  Subsection (1) of section 364.335, Florida

13  Statutes, is amended to read:

14         364.335  Application for certificate.--

15         (1)  Each applicant for a certificate shall:

16         (a)  Provide all information required by rule or order

17  of the commission, which may include a detailed inquiry into

18  the ability of the applicant to provide service, a detailed

19  inquiry into the territory and facilities involved, and a

20  detailed inquiry into the existence of service from other

21  sources within geographical proximity to the territory applied

22  for.

23         (b)  File with the commission schedules showing all

24  rates for service of every kind furnished by it and all rules

25  and contracts relating to such service.

26         (c)  File the application fee required by the

27  commission in an amount not to exceed $500 $250.  Such fees

28  shall be deposited in accordance with s. 350.113.

29         (d)  Submit an affidavit that the applicant has caused

30  notice of its application to be given to such persons and in

31  such manner as may be prescribed by commission rule.

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 1         Section 10.  Section 364.336, Florida Statutes, is

 2  amended to read:

 3         364.336  Regulatory assessment fees.--Notwithstanding

 4  any provisions of law to the contrary, each telecommunications

 5  company licensed or operating under this chapter, for any part

 6  of the preceding 6-month period, shall pay to the commission,

 7  within 30 days following the end of each 6-month period, a fee

 8  that may not exceed 0.25 percent annually of its gross

 9  operating revenues derived from intrastate business, except,

10  for purposes of this section and the fee specified in s.

11  350.113(3), any amount paid to another telecommunications

12  company for the use of any telecommunications network shall be

13  deducted from the gross operating revenue for purposes of

14  computing the fee due. The commission shall by rule assess a

15  minimum fee in an amount up to $1,000. The minimum amount may

16  vary depending on the type of service provided by the

17  telecommunications company, and shall, to the extent

18  practicable, be related to the cost of regulating such type of

19  company. Differences, if any, between the amount paid in any

20  6-month period and the amount actually determined by the

21  commission to be due shall, upon motion by the commission, be

22  immediately paid or refunded. Fees under this section may not

23  be less than $50 annually.  Such fees shall be deposited in

24  accordance with s. 350.113.  The commission may by rule

25  establish criteria for payment of the regulatory assessment

26  fee on an annual basis rather than on a semiannual basis.

27         Section 11.  Subsection (6) of section 196.012, Florida

28  Statutes, is amended to read:

29         196.012  Definitions.--For the purpose of this chapter,

30  the following terms are defined as follows, except where the

31  context clearly indicates otherwise:

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 1         (6)  Governmental, municipal, or public purpose or

 2  function shall be deemed to be served or performed when the

 3  lessee under any leasehold interest created in property of the

 4  United States, the state or any of its political subdivisions,

 5  or any municipality, agency, special district, authority, or

 6  other public body corporate of the state is demonstrated to

 7  perform a function or serve a governmental purpose which could

 8  properly be performed or served by an appropriate governmental

 9  unit or which is demonstrated to perform a function or serve a

10  purpose which would otherwise be a valid subject for the

11  allocation of public funds. For purposes of the preceding

12  sentence, an activity undertaken by a lessee which is

13  permitted under the terms of its lease of real property

14  designated as an aviation area on an airport layout plan which

15  has been approved by the Federal Aviation Administration and

16  which real property is used for the administration, operation,

17  business offices and activities related specifically thereto

18  in connection with the conduct of an aircraft full service

19  fixed base operation which provides goods and services to the

20  general aviation public in the promotion of air commerce shall

21  be deemed an activity which serves a governmental, municipal,

22  or public purpose or function. Any activity undertaken by a

23  lessee which is permitted under the terms of its lease of real

24  property designated as a public airport as defined in s.

25  332.004(14) by municipalities, agencies, special districts,

26  authorities, or other public bodies corporate and public

27  bodies politic of the state, a spaceport as defined in s.

28  331.303(19), or which is located in a deepwater port

29  identified in s. 403.021(9)(b) and owned by one of the

30  foregoing governmental units, subject to a leasehold or other

31  possessory interest of a nongovernmental lessee that is deemed

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 1  to perform an aviation, airport, aerospace, maritime, or port

 2  purpose or operation shall be deemed an activity that serves a

 3  governmental, municipal, or public purpose. The use by a

 4  lessee, licensee, or management company of real property or a

 5  portion thereof as a convention center, visitor center, sports

 6  facility with permanent seating, concert hall, arena, stadium,

 7  park, or beach is deemed a use that serves a governmental,

 8  municipal, or public purpose or function when access to the

 9  property is open to the general public with or without a

10  charge for admission. If property deeded to a municipality by

11  the United States is subject to a requirement that the Federal

12  Government, through a schedule established by the Secretary of

13  the Interior, determine that the property is being maintained

14  for public historic preservation, park, or recreational

15  purposes and if those conditions are not met the property will

16  revert back to the Federal Government, then such property

17  shall be deemed to serve a municipal or public purpose. The

18  term "governmental purpose" also includes a direct use of

19  property on federal lands in connection with the Federal

20  Government's Space Exploration Program or spaceport activities

21  as defined in s. 212.02(22). Real property and tangible

22  personal property owned by the Federal Government or the

23  Florida Space Authority and used for defense and space

24  exploration purposes or which is put to a use in support

25  thereof shall be deemed to perform an essential national

26  governmental purpose and shall be exempt. "Owned by the

27  lessee" as used in this chapter does not include personal

28  property, buildings, or other real property improvements used

29  for the administration, operation, business offices and

30  activities related specifically thereto in connection with the

31  conduct of an aircraft full service fixed based operation

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 1  which provides goods and services to the general aviation

 2  public in the promotion of air commerce provided that the real

 3  property is designated as an aviation area on an airport

 4  layout plan approved by the Federal Aviation Administration.

 5  For purposes of determination of "ownership," buildings and

 6  other real property improvements which will revert to the

 7  airport authority or other governmental unit upon expiration

 8  of the term of the lease shall be deemed "owned" by the

 9  governmental unit and not the lessee. Providing two-way

10  telecommunications services to the public for hire by the use

11  of a telecommunications facility, as defined in s. 364.02(15)

12  s.364.02(14), and for which a certificate is required under

13  chapter 364 does not constitute an exempt use for purposes of

14  s. 196.199, unless the telecommunications services are

15  provided by the operator of a public-use airport, as defined

16  in s. 332.004, for the operator's provision of

17  telecommunications services for the airport or its tenants,

18  concessionaires, or licensees, or unless the

19  telecommunications services are provided by a public hospital.

20  However, property that is being used to provide such

21  telecommunications services on or before October 1, 1997,

22  shall remain exempt, but such exemption expires October 1,

23  2004.

24         Section 12.  Paragraph (b) of subsection (1) of section

25  199.183, Florida Statutes, is amended to read:

26         199.183  Taxpayers exempt from annual and nonrecurring

27  taxes.--

28         (1)  Intangible personal property owned by this state

29  or any of its political subdivisions or municipalities shall

30  be exempt from taxation under this chapter. This exemption

31  does not apply to:

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 1         (b)  Property related to the provision of two-way

 2  telecommunications services to the public for hire by the use

 3  of a telecommunications facility, as defined in s. 364.02(15)

 4  s. 364.02(14), and for which a certificate is required under

 5  chapter 364, when the such service is provided by any county,

 6  municipality, or other political subdivision of the state. Any

 7  immunity of any political subdivision of the state or other

 8  entity of local government from taxation of the property used

 9  to provide telecommunication services that is taxed as a

10  result of this paragraph is hereby waived. However, intangible

11  personal property related to the provision of such

12  telecommunications services provided by the operator of a

13  public-use airport, as defined in s. 332.004, for the

14  operator's provision of telecommunications services for the

15  airport or its tenants, concessionaires, or licensees, and

16  intangible personal property related to the provision of such

17  telecommunications services provided by a public hospital, are

18  exempt from taxation under this chapter.

19         Section 13.  Subsection (6) of section 212.08, Florida

20  Statutes, is amended to read:

21         212.08  Sales, rental, use, consumption, distribution,

22  and storage tax; specified exemptions.--The sale at retail,

23  the rental, the use, the consumption, the distribution, and

24  the storage to be used or consumed in this state of the

25  following are hereby specifically exempt from the tax imposed

26  by this chapter.

27         (6)  EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are

28  also exempt from the tax imposed by this chapter sales made to

29  the United States Government, a state, or any county,

30  municipality, or political subdivision of a state when payment

31  is made directly to the dealer by the governmental entity.

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 1  This exemption shall not inure to any transaction otherwise

 2  taxable under this chapter when payment is made by a

 3  government employee by any means, including, but not limited

 4  to, cash, check, or credit card when that employee is

 5  subsequently reimbursed by the governmental entity. This

 6  exemption does not include sales of tangible personal property

 7  made to contractors employed either directly or as agents of

 8  any such government or political subdivision thereof when such

 9  tangible personal property goes into or becomes a part of

10  public works owned by such government or political

11  subdivision. A determination whether a particular transaction

12  is properly characterized as an exempt sale to a government

13  entity or a taxable sale to a contractor shall be based on the

14  substance of the transaction rather than the form in which the

15  transaction is cast. The department shall adopt rules that

16  give special consideration to factors that govern the status

17  of the tangible personal property before its affixation to

18  real property. In developing these rules, assumption of the

19  risk of damage or loss is of paramount consideration in the

20  determination. This exemption does not include sales, rental,

21  use, consumption, or storage for use in any political

22  subdivision or municipality in this state of machines and

23  equipment and parts and accessories therefor used in the

24  generation, transmission, or distribution of electrical energy

25  by systems owned and operated by a political subdivision in

26  this state for transmission or distribution expansion.

27  Likewise exempt are charges for services rendered by radio and

28  television stations, including line charges, talent fees, or

29  license fees and charges for films, videotapes, and

30  transcriptions used in producing radio or television

31  broadcasts. The exemption provided in this subsection does not

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    Florida Senate - 2005                           CS for SB 2068
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 1  include sales, rental, use, consumption, or storage for use in

 2  any political subdivision or municipality in this state of

 3  machines and equipment and parts and accessories therefor used

 4  in providing two-way telecommunications services to the public

 5  for hire by the use of a telecommunications facility, as

 6  defined in s. 364.02(15) s. 364.02(14), and for which a

 7  certificate is required under chapter 364, which facility is

 8  owned and operated by any county, municipality, or other

 9  political subdivision of the state.  Any immunity of any

10  political subdivision of the state or other entity of local

11  government from taxation of the property used to provide

12  telecommunication services that is taxed as a result of this

13  section is hereby waived.  However, the exemption provided in

14  this subsection includes transactions taxable under this

15  chapter which are for use by the operator of a public-use

16  airport, as defined in s. 332.004, in providing such

17  telecommunications services for the airport or its tenants,

18  concessionaires, or licensees, or which are for use by a

19  public hospital for the provision of such telecommunications

20  services.

21         Section 14.  Subsection (8) of section 290.007, Florida

22  Statutes, is amended to read:

23         290.007  State incentives available in enterprise

24  zones.--The following incentives are provided by the state to

25  encourage the revitalization of enterprise zones:

26         (8)  Notwithstanding any law to the contrary, the

27  Public Service Commission may allow public utilities and

28  telecommunications companies to grant discounts of up to 50

29  percent on tariffed rates for services to small businesses

30  located in an enterprise zone designated pursuant to s.

31  290.0065. Such discounts may be granted for a period not to

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 1  exceed 5 years. For purposes of this subsection, the term

 2  "public utility" has the same meaning as in s. 366.02(1) and

 3  the term "telecommunications company" has the same meaning as

 4  in s. 364.02(14) s. 364.02(13).

 5         Section 15.  Subsection (3) of section 350.0605,

 6  Florida Statutes, is amended to read:

 7         350.0605  Former commissioners and employees;

 8  representation of clients before commission.--

 9         (3)  For a period of 2 years following termination of

10  service on the commission, a former member may not accept

11  employment by or compensation from a business entity which,

12  directly or indirectly, owns or controls a public utility

13  regulated by the commission, from a public utility regulated

14  by the commission, from a business entity which, directly or

15  indirectly, is an affiliate or subsidiary of a public utility

16  regulated by the commission or is an actual business

17  competitor of a local exchange company or public utility

18  regulated by the commission and is otherwise exempt from

19  regulation by the commission under ss. 364.02(14) 364.02(13)

20  and 366.02(1), or from a business entity or trade association

21  that has been a party to a commission proceeding within the 2

22  years preceding the member's termination of service on the

23  commission.  This subsection applies only to members of the

24  Florida Public Service Commission who are appointed or

25  reappointed after May 10, 1993.

26         Section 16.  Subsection (4) of section 364.602, Florida

27  Statutes, is amended to read:

28         364.602  Definitions.--For purposes of this part:

29         (4)  "Originating party" means any person, firm,

30  corporation, or other entity, including a telecommunications

31  company or a billing clearinghouse, that provides any

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 1  telecommunications service or information service to a

 2  customer or bills a customer through a billing party, except

 3  the term "originating party" does not include any entity

 4  specifically exempted from the definition of

 5  "telecommunications company" as provided in s. 364.02(14) s.

 6  364.02(13).

 7         Section 17.  Subsection (5) of section 489.103, Florida

 8  Statutes, is amended to read:

 9         489.103  Exemptions.--This part does not apply to:

10         (5)  Public utilities, including special gas districts

11  as defined in chapter 189, telecommunications companies as

12  defined in s. 364.02(14) s. 364.02(13) and natural gas

13  transmission companies as defined in s. 368.103(4), on

14  construction, maintenance, and development work performed by

15  their employees, which work, including, but not limited to,

16  work on bridges, roads, streets, highways, or railroads, is

17  incidental to their business. The board shall define, by rule,

18  the term "incidental to their business" for purposes of this

19  subsection.

20         Section 18.  This act shall take effect July 1, 2005.

21  

22          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
23                             SB 2068

24                                 

25  The committee substitute reinstates legislative intent and
    clarifies available remedies outside commission jurisdiction.
26  It also preserves consumer action under chapter 501, F.S. The
    bill clarifies the meaning of the terms "broadband" and
27  "service." The committee substitute removes nonbasic services
    from a new exemptions section and replaces it with intrastate
28  interexchange telecommunications carriers. It conforms the
    wireless telecommunication providers exempt with current law
29  and modifies the qualifier of broadband services. The
    committee substitute includes defenses as an action available
30  to parties under state or federal law. It also raises the
    threshold of fees that the commission can charge for
31  regulatory assessment and application for certificate. The
    committee substitute makes conforming and technical changes.
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