Florida Senate - 2005                      COMMITTEE AMENDMENT
    Bill No. CS for SB's 2072 & 1714
                        Barcode 400850
                            CHAMBER ACTION
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11  The Committee on General Government Appropriations (Baker)
12  recommended the following amendment:
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14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Communications services offered by
19  governmental entities.--
20         (1)  As used in this section, the term:
21         (a)  "Advanced service" means
22  high-speed-Internet-access-service capability in excess of 200
23  kilobits per second in the upstream or the downstream
24  direction, including any service application provided over the
25  high-speed-access service or any information service as
26  defined in 47 U.S.C. s. 153(20).
27         (b)  "Cable service" has the same meaning as in 47
28  U.S.C. s. 522(6).
29         (c)  "Communications services" includes any "advanced
30  service," "cable service," or "telecommunications service" and
31  shall be construed in the broadest sense.
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Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 (d) "Enterprise fund" means a separate fund to account 2 for the operation of communications services by a local 3 government, established and maintained in accordance with 4 generally accepted accounting principles as prescribed by the 5 Governmental Accounting Standards Board. 6 (e) "Governmental entity" means any political 7 subdivision as defined in section 1.01, Florida Statutes, 8 including any county, municipality, special district, school 9 district, utility authority or other authority or any 10 instrumentality, agency, unit or department thereof. The term 11 does not include an independent special district created 12 before 1970 which has been granted express legislative 13 authority to provide a communications service and which does 14 not sell a communications service outside its district 15 boundaries. 16 (f) "Provide," "providing," "provision," or 17 "provisioning" means offering or supplying a communications 18 service for a fee or other consideration to a person, 19 including any portion of the public or private provider, but 20 does not include service by an entity to itself or to any 21 other governmental entity. 22 (g) "Subscriber" means a person who receives a 23 communications service. 24 (h) "Telecommunications services" means the 25 transmission of signs, signals, writing, images, sounds, 26 messages, data, or other information of the user's choosing, 27 by wire, radio, light waves, or other electromagnetic means, 28 without change in the form or content of the information as 29 sent and received by the user and regardless of the facilities 30 used. 31 (2)(a) A governmental entity that proposes to provide 2 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 a communications service shall hold no less than two public 2 hearings, which shall be held not less than 30 days apart. At 3 least 30 days before the first of the two public hearings, the 4 governmental entity must give notice of the hearing in the 5 predominant newspaper of general circulation in the area 6 considered for service. At least 40 days before the first 7 public hearing, the governmental entity must electronically 8 provide notice to the Department of Revenue and the Public 9 Service Commission, which shall post the notice on the 10 department's and the commission's website to be available to 11 the public. The Department of Revenue shall also send the 12 notice by United States Postal Service to the known addresses 13 for all dealers of communications services registered with the 14 department under chapter 202, Florida Statutes, or provide an 15 electronic notification, if the means are available, within 10 16 days after receiving the notice. The notice must include the 17 time and place of the hearings and must state that the purpose 18 of the hearings is to consider whether the governmental entity 19 will provide communications services. The notice must include, 20 at a minimum, the geographic areas proposed to be served by 21 the governmental entity and the services, if any, which the 22 governmental entity believes are not currently being 23 adequately provided. The notice must also state that any 24 dealer who wishes to do so may appear and be heard at the 25 public hearings. 26 (b) At a public hearing required by this subsection, a 27 governmental entity must, at a minimum, consider: 28 1. Whether the service that is proposed to be provided 29 is currently being offered in the community and, if so, 30 whether the service is generally available throughout the 31 community. 3 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 2. Whether a similar service is currently being 2 offered in the community and, if so, whether the service is 3 generally available throughout the community. 4 3. If the same or similar service is not currently 5 offered, whether any other service provider proposes to offer 6 the same or a similar service and, if so, what assurances that 7 service provider is willing or able to offer regarding the 8 same or similar service. 9 4. The capital investment required by the government 10 entity to provide the communications service, the estimated 11 realistic cost of operation and maintenance and, using a full 12 cost-accounting method, the estimated realistic revenues and 13 expenses of providing the service and the proposed method of 14 financing. 15 5. The private and public costs and benefits of 16 providing the service by a private entity or a governmental 17 entity, including the affect on existing and future jobs, 18 actual economic development prospects, tax-base growth, 19 education, and public health. 20 (c) At one or more of the public hearings under this 21 subsection, the governmental entity must make available to the 22 public a written business plan for the proposed communications 23 service venture containing, at a minimum: 24 1. The projected number of customers to be served by 25 the venture. 26 2. The geographic area to be served by the venture. 27 3. The types of communications services to be 28 provided. 29 4. A plan to ensure that revenues exceed operating 30 expenses and payment of principal and interest on debt within 31 4 years. 4 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 5. Estimated capital and operational costs and 2 revenues for the first 4 years. 3 6. Projected network modernization and technological 4 upgrade plans, including estimated costs. 5 (d) After making specific findings regarding the 6 factors in paragraphs (2)(b) and (2)(c), the governmental 7 entity may authorize providing a communications service by a 8 majority recorded vote, and by resolution, ordinance, or other 9 formal means of adoption. 10 (e) The governing body of a governmental entity may 11 issue one or more bonds to finance the capital costs for 12 facilities to provide a communications service. However: 13 1. A governmental entity may only pledge revenues in 14 support of the issuance of any bond to finance providing a 15 communications service: 16 a. Within the county in which the governmental entity 17 is located; 18 b. Within an area in which the governmental entity 19 provides electric service outside its home county under an 20 electric service territorial agreement approved by the Public 21 Service Commission before the effective date of this act; or 22 c. If the governmental entity is a municipality or 23 special district, within its corporate limits or in an area in 24 which the municipality or special district provides water, 25 wastewater, electric, or natural gas service, or within an 26 urban service area designated in a comprehensive plan, 27 whichever is larger, unless the municipality or special 28 district obtains the consent of the governmental entity within 29 the boundaries of which the municipality or special district 30 proposes to provide service. 31 2. Revenue bonds issued in order to finance providing 5 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 a communications service are not subject to the approval of 2 the electors if the revenue bonds mature within 15 years. 3 Revenue bonds issued to finance providing a communications 4 service that does not mature within 15 years must be approved 5 by the electors. The election must be conducted as specified 6 in chapter 100, Florida Statutes. 7 (f) A governmental entity providing a communications 8 service may not price any service below the cost of providing 9 the service by subsidizing the communications service with 10 moneys from rates paid by customers of a noncommunications 11 services utility or from any other revenues. The cost standard 12 for determining cross-subsidization is whether the total 13 revenue from the service is less than the total long-run 14 incremental cost of the service. Total long-run incremental 15 cost means service-specific volume and nonvolume-sensitive 16 costs. 17 (g) A governmental entity providing a communications 18 service must comply with the requirements of section 218.32, 19 Florida Statutes, and shall keep separate and accurate books 20 and records, maintained in accordance with generally accepted 21 accounting principles, of a governmental entity's 22 communication service, and they shall be made available for 23 any audits of the books and records conducted under applicable 24 law. To facilitate equitable distribution of indirect costs, a 25 local government shall develop and follow a cost-allocation 26 plan, which is a procedure for allocating direct and indirect 27 costs and which is generally developed in accordance with OMB 28 Circular A-87, Cost Principles for State, Local, and Indian 29 Tribal Government, published by the United States Office of 30 Management and Budget. 31 (h) The governmental entity shall establish an 6 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 enterprise fund to account for its operation of communications 2 services. 3 (i) The governmental entity shall adopt separate 4 operating and capital budgets for its communications services. 5 (j) A governmental entity may not use its powers of 6 eminent domain under chapter 73, Florida Statutes, solely or 7 primarily for the purpose of providing a communications 8 service. 9 (k) If, after 4 years after the initiation of 10 communications services, revenues do not exceed operating 11 expenses and payment of principal and interest on the debt, a 12 governmental entity shall hold a public hearing at which the 13 governmental entity must consider the disposition of the 14 system, a plan to limit or cease operations, a partnership 15 with a private entity, or any other means appropriate to 16 ensure that the goals of the business plan required under 17 paragraph (c) are met, including ways of reducing operating 18 expenses or increasing revenues. 19 (3)(a) A governmental entity that provides a cable 20 service shall comply with the Cable Communications Policy Act 21 of 1984, 47 U.S.C. 521, et seq., the regulations issued by the 22 Federal Communications Commission under the Cable 23 Communications Policy Act of 1984, 47 U.S.C. 521, et seq., and 24 all applicable state and federal rules and regulations, 25 including, but not limited to, section 166.046, Florida 26 Statutes, and those provisions of chapters 202, 212, and 337, 27 Florida Statutes, which apply to a provider of the services. 28 (b) A governmental entity that provides a 29 telecommunications service or advanced service must comply, if 30 applicable, with chapter 364, Florida Statutes, and rules 31 adopted by the Public Service Commission; chapter 166, Florida 7 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 Statutes; and all applicable state and federal rules and 2 regulations, including, but not limited to, those provisions 3 of chapters 202, 212, and 337, Florida Statutes, which apply 4 to a provider of the services. 5 (c) A governmental entity may not exercise its power 6 or authority in any area, including zoning or land use 7 regulation, to require any person, including residents of a 8 particular development, to use or subscribe to any 9 communication service of a governmental entity. 10 (d) A governmental entity shall apply its ordinances, 11 rules, and policies, and exercise any authority under state or 12 federal laws, including, but not limited to, those relating to 13 the following subjects and without discrimination as to itself 14 when providing a communications service or to any private 15 provider of communications services: 16 1. Access to public rights-of-way; and 17 2. Permitting, access to, use of, and payment for use 18 of governmental entity-owned poles. The governmental entity is 19 subject to the same terms, conditions, and fees, if any, for 20 access to government-owned poles which the governmental entity 21 applies to a private provider for access. 22 (4)(a) If a governmental entity was providing, as of 23 April 1, 2005, advanced services, cable services, or 24 telecommunications services, then it is not required to comply 25 with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), 26 paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph 27 (2)(f), or paragraph (2)(k), in order to continue to provide 28 advanced services, cable services, or telecommunications 29 services, respectively, but it must comply with and be subject 30 to all other provisions of this section. 31 (b) If a governmental entity, as of April 1, 2005, had 8 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 issued debt pledging revenues from an advanced service, cable 2 service, or telecommunications service, then it is not 3 required to comply with paragraph (2)(a), paragraph (2)(b), 4 paragraph (2)(c), paragraph (2)(d), sub-subparagraph 5 (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k), in order to 6 provide advanced services, cable services, or 7 telecommunications services, respectively, but it must comply 8 with and be subject to all other provisions of this section. 9 (c) If a governmental entity, as of April 1, 2005, has 10 purchased equipment specifically for the provisioning of 11 advanced service, cable service, or telecommunication service, 12 and, as of May 6, 2005, has authorized the providing of an 13 advanced service, cable service, or telecommunication service, 14 then it is not required to comply with paragraph (2)(a), 15 paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), 16 sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph 17 (2)(k) in order to provide advanced service, cable service, or 18 telecommunication service, respectively, but it must comply 19 with and be subject to all other provisions of this section. 20 21 This subsection does not relieve a governmental entity from 22 complying with subsection (5). 23 (5) Notwithstanding section 542.235, Florida Statutes, 24 or any other law, a governmental entity that provides a 25 communications service is subject to the same prohibitions 26 applicable to private providers under sections 542.18 and 27 542.19, Florida Statutes, as it relates to providing a 28 communications service. In addition, the exemption from 29 complying with paragraph (2)(f), does not confer state action 30 immunity, or any other antitrust immunity or exemption, on any 31 governmental entity providing communications services. 9 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 (6) To ensure the safe and secure transportation of 2 passengers and freight through an airport facility, as defined 3 in section 159.27(17), Florida Statutes, an airport authority 4 or other governmental entity that provides or is proposing to 5 provide communications services only within the boundaries of 6 its airport layout plan, as defined in section 333.01(6), 7 Florida Statutes, to subscribers which are integral and 8 essential to the safe and secure transportation of passengers 9 and freight through the airport facility, is exempt from this 10 section. An airport authority or other governmental entity 11 that provides or is proposing to provide shared-tenant service 12 under section 364.339, Florida Statutes, but not dial tone 13 enabling subscribers to complete calls outside the airport 14 layout plan, to one or more subscribers within its airport 15 layout plan which are not integral and essential to the safe 16 and secure transportation of passengers and freight through 17 the airport facility is exempt from this section. An airport 18 authority or other governmental entity that provides or is 19 proposing to provide communications services to one or more 20 customers within its airport layout plan which are not 21 integral and essential to the safe and secure transportation 22 of passengers and freight through the airport facility, or to 23 one or more customers outside its airport layout plan, is not 24 exempt from this section. By way of example and not 25 limitation, the integral, essential subscribers may include 26 airlines and emergency service entities, and the nonintegral, 27 nonessential subscribers may include retail shops, 28 restaurants, hotels, or rental car companies. 29 (7) This section does not alter or affect any 30 provision in the charter, code, or other governing authority 31 of a governmental entity. 10 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 Section 2. If any provision of this act or its 2 application to any person or circumstance is held invalid, the 3 invalidity does not affect other provisions or applications of 4 the act which can be given effect without the invalid 5 provision or application, and to this end the provisions of 6 this act are severable. 7 Section 3. This act shall take effect upon becoming a 8 law. 9 10 11 ================ T I T L E A M E N D M E N T =============== 12 And the title is amended as follows: 13 Delete everything before the enacting clause 14 15 and insert: 16 A bill to be entitled 17 An act relating to local governments; providing 18 definitions; providing for notice of public 19 hearings to consider whether the local 20 government will provide a communications 21 service; requiring a governmental entity to 22 consider certain factors before a 23 communications service is provided; providing 24 certain restrictions on revenue bonds to 25 finance provisioning of communications 26 services; requiring a local government to make 27 available a written business plan; providing 28 criteria for the business plan; setting pricing 29 standards; providing for accounting and books 30 and records; requiring the governmental entity 31 to establish an enterprise fund; requiring the 11 1:20 PM 04/25/05 s2072.ga20.00y
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. CS for SB's 2072 & 1714 Barcode 400850 1 governmental entity to maintain separate 2 operating and capital budgets; limiting the use 3 of eminent-domain powers; requiring a 4 governmental entity to hold a public hearing to 5 consider certain factors if the business plan 6 goals are not met; requiring compliance with 7 certain federal and state laws; requiring local 8 government to treat itself the same as it 9 treats other providers of similar 10 communications services; exempting certain 11 governmental entities from specified provisions 12 of the act; requiring a local government 13 provider of communications services to follow 14 the same prohibitions as other providers of the 15 same services; providing an exemption for 16 airports under certain conditions; recognizing 17 preemption of a charter, code, or other 18 governmental authority; providing for 19 severability; providing an effective date. 20 21 22 23 24 25 26 27 28 29 30 31 12 1:20 PM 04/25/05 s2072.ga20.00y