Senate Bill sb2072c2

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    Florida Senate - 2005           CS for CS for SB's 2072 & 1714

    By the Committees on General Government Appropriations;
    Communications and Public Utilities; and Senators Constantine,
    Bennett, Campbell, Baker, King, Alexander, Crist, Wise, Posey,
    Rich, Villalobos, Hill, Haridopolos, Dawson and Bullard


    601-2330-05

  1                      A bill to be entitled

  2         An act relating to local governments; providing

  3         definitions; providing for notice of public

  4         hearings to consider whether the local

  5         government will provide a communications

  6         service; requiring a governmental entity to

  7         consider certain factors before a

  8         communications service is provided; providing

  9         certain restrictions on revenue bonds to

10         finance provisioning of communications

11         services; requiring a local government to make

12         available a written business plan; providing

13         criteria for the business plan; setting pricing

14         standards; providing for accounting and books

15         and records; requiring the governmental entity

16         to establish an enterprise fund; requiring the

17         governmental entity to maintain separate

18         operating and capital budgets; limiting the use

19         of eminent-domain powers; requiring a

20         governmental entity to hold a public hearing to

21         consider certain factors if the business plan

22         goals are not met; requiring compliance with

23         certain federal and state laws; requiring local

24         government to treat itself the same as it

25         treats other providers of similar

26         communications services; exempting certain

27         governmental entities from specified provisions

28         of the act; requiring a local government

29         provider of communications services to follow

30         the same prohibitions as other providers of the

31         same services; providing an exemption for

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 1         airports under certain conditions; recognizing

 2         preemption of a charter, code, or other

 3         governmental authority; providing for

 4         severability; providing an effective date.

 5  

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

 7  

 8         Section 1.  Communications services offered by

 9  governmental entities.--

10         (1)  As used in this section, the term:

11         (a)  "Advanced service" means

12  high-speed-Internet-access-service capability in excess of 200

13  kilobits per second in the upstream or the downstream

14  direction, including any service application provided over the

15  high-speed-access service or any information service as

16  defined in 47 U.S.C. s. 153(20).

17         (b)  "Cable service" has the same meaning as in 47

18  U.S.C. s. 522(6).

19         (c)  "Communications services" includes any "advanced

20  service," "cable service," or "telecommunications service" and

21  shall be construed in the broadest sense.

22         (d)  "Enterprise fund" means a separate fund to account

23  for the operation of communications services by a local

24  government, established and maintained in accordance with

25  generally accepted accounting principles as prescribed by the

26  Governmental Accounting Standards Board.

27         (e)  "Governmental entity" means any political

28  subdivision as defined in section 1.01, Florida Statutes,

29  including any county, municipality, special district, school

30  district, utility authority or other authority or any

31  instrumentality, agency, unit or department thereof. The term

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 1  does not include an independent special district created

 2  before 1970 which has been granted express legislative

 3  authority to provide a communications service and which does

 4  not sell a communications service outside its district

 5  boundaries.

 6         (f)  "Provide," "providing," "provision," or

 7  "provisioning" means offering or supplying a communications

 8  service for a fee or other consideration to a person,

 9  including any portion of the public or private provider, but

10  does not include service by an entity to itself or to any

11  other governmental entity.

12         (g)  "Subscriber" means a person who receives a

13  communications service.

14         (h)  "Telecommunications services" means the

15  transmission of signs, signals, writing, images, sounds,

16  messages, data, or other information of the user's choosing,

17  by wire, radio, light waves, or other electromagnetic means,

18  without change in the form or content of the information as

19  sent and received by the user and regardless of the facilities

20  used.

21         (2)(a)  A governmental entity that proposes to provide

22  a communications service shall hold no less than two public

23  hearings, which shall be held not less than 30 days apart. At

24  least 30 days before the first of the two public hearings, the

25  governmental entity must give notice of the hearing in the

26  predominant newspaper of general circulation in the area

27  considered for service. At least 40 days before the first

28  public hearing, the governmental entity must electronically

29  provide notice to the Department of Revenue and the Public

30  Service Commission, which shall post the notice on the

31  department's and the commission's website to be available to

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 1  the public. The Department of Revenue shall also send the

 2  notice by United States Postal Service to the known addresses

 3  for all dealers of communications services registered with the

 4  department under chapter 202, Florida Statutes, or provide an

 5  electronic notification, if the means are available, within 10

 6  days after receiving the notice. The notice must include the

 7  time and place of the hearings and must state that the purpose

 8  of the hearings is to consider whether the governmental entity

 9  will provide communications services. The notice must include,

10  at a minimum, the geographic areas proposed to be served by

11  the governmental entity and the services, if any, which the

12  governmental entity believes are not currently being

13  adequately provided. The notice must also state that any

14  dealer who wishes to do so may appear and be heard at the

15  public hearings.

16         (b)  At a public hearing required by this subsection, a

17  governmental entity must, at a minimum, consider:

18         1.  Whether the service that is proposed to be provided

19  is currently being offered in the community and, if so,

20  whether the service is generally available throughout the

21  community.

22         2.  Whether a similar service is currently being

23  offered in the community and, if so, whether the service is

24  generally available throughout the community.

25         3.  If the same or similar service is not currently

26  offered, whether any other service provider proposes to offer

27  the same or a similar service and, if so, what assurances that

28  service provider is willing or able to offer regarding the

29  same or similar service.

30         4.  The capital investment required by the government

31  entity to provide the communications service, the estimated

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 1  realistic cost of operation and maintenance and, using a full

 2  cost-accounting method, the estimated realistic revenues and

 3  expenses of providing the service and the proposed method of

 4  financing.

 5         5.  The private and public costs and benefits of

 6  providing the service by a private entity or a governmental

 7  entity, including the affect on existing and future jobs,

 8  actual economic development prospects, tax-base growth,

 9  education, and public health.

10         (c)  At one or more of the public hearings under this

11  subsection, the governmental entity must make available to the

12  public a written business plan for the proposed communications

13  service venture containing, at a minimum:

14         1.  The projected number of subscribers to be served by

15  the venture.

16         2.  The geographic area to be served by the venture.

17         3.  The types of communications services to be

18  provided.

19         4.  A plan to ensure that revenues exceed operating

20  expenses and payment of principal and interest on debt within

21  4 years.

22         5.  Estimated capital and operational costs and

23  revenues for the first 4 years.

24         6.  Projected network modernization and technological

25  upgrade plans, including estimated costs.

26         (d)  After making specific findings regarding the

27  factors in paragraphs (b) and (c), the governmental entity may

28  authorize providing a communications service by a majority

29  recorded vote and by resolution, ordinance, or other formal

30  means of adoption.

31  

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 1         (e)  The governing body of a governmental entity may

 2  issue one or more bonds to finance the capital costs for

 3  facilities to provide a communications service. However:

 4         1.  A governmental entity may only pledge revenues in

 5  support of the issuance of any bond to finance providing a

 6  communications service:

 7         a.  Within the county in which the governmental entity

 8  is located;

 9         b.  Within an area in which the governmental entity

10  provides electric service outside its home county under an

11  electric service territorial agreement approved by the Public

12  Service Commission before the effective date of this act; or

13         c.  If the governmental entity is a municipality or

14  special district, within its corporate limits or in an area in

15  which the municipality or special district provides water,

16  wastewater, electric, or natural gas service, or within an

17  urban service area designated in a comprehensive plan,

18  whichever is larger, unless the municipality or special

19  district obtains the consent of the governmental entity within

20  the boundaries of which the municipality or special district

21  proposes to provide service.

22         2.  Revenue bonds issued in order to finance providing

23  a communications service are not subject to the approval of

24  the electors if the revenue bonds mature within 15 years.

25  Revenue bonds issued to finance providing a communications

26  service that does not mature within 15 years must be approved

27  by the electors. The election must be conducted as specified

28  in chapter 100, Florida Statutes.

29         (f)  A governmental entity providing a communications

30  service may not price any service below the cost of providing

31  the service by subsidizing the communications service with

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 1  moneys from rates paid by subscribers of a noncommunications

 2  services utility or from any other revenues. The cost standard

 3  for determining cross-subsidization is whether the total

 4  revenue from the service is less than the total long-run

 5  incremental cost of the service. Total long-run incremental

 6  cost means service-specific volume and nonvolume-sensitive

 7  costs.

 8         (g)  A governmental entity providing a communications

 9  service must comply with the requirements of section 218.32,

10  Florida Statutes, and shall keep separate and accurate books

11  and records, maintained in accordance with generally accepted

12  accounting principles, of a governmental entity's

13  communication service, and they shall be made available for

14  any audits of the books and records conducted under applicable

15  law. To facilitate equitable distribution of indirect costs, a

16  local government shall develop and follow a cost-allocation

17  plan, which is a procedure for allocating direct and indirect

18  costs and which is generally developed in accordance with OMB

19  Circular A-87, Cost Principles for State, Local, and Indian

20  Tribal Government, published by the United States Office of

21  Management and Budget.

22         (h)  The governmental entity shall establish an

23  enterprise fund to account for its operation of communications

24  services.

25         (i)  The governmental entity shall adopt separate

26  operating and capital budgets for its communications services.

27         (j)  A governmental entity may not use its powers of

28  eminent domain under chapter 73, Florida Statutes, solely or

29  primarily for the purpose of providing a communications

30  service.

31  

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 1         (k)  The governmental entity shall conduct an annual

 2  review at a formal public meeting to consider the progress the

 3  governmental entity is making toward reaching its business

 4  plan goals and objectives for providing communication

 5  services. At the public meeting the governmental entity shall

 6  review the related revenues, operating expenses, and payment

 7  of interest on debt.

 8         (l)  If, after 4 years after the initiation of

 9  communications services, revenues do not exceed operating

10  expenses and payment of principal and interest on the debt, a

11  governmental entity shall hold a public hearing at which the

12  governmental entity must consider the disposition of the

13  system, a plan to limit or cease operations, a partnership

14  with a private entity, or any other means appropriate to

15  ensure that the goals of the business plan required under

16  paragraph (c) are met, including ways of reducing operating

17  expenses or increasing revenues.

18         (3)(a)  A governmental entity that provides a cable

19  service shall comply with the Cable Communications Policy Act

20  of 1984, 47 U.S.C. 521, et seq., the regulations issued by the

21  Federal Communications Commission under the Cable

22  Communications Policy Act of 1984, 47 U.S.C. 521, et seq., and

23  all applicable state and federal rules and regulations,

24  including, but not limited to, section 166.046, Florida

25  Statutes, and those provisions of chapters 202, 212, and 337,

26  Florida Statutes, which apply to a provider of the services.

27         (b)  A governmental entity that provides a

28  telecommunications service or advanced service must comply, if

29  applicable, with chapter 364, Florida Statutes, and rules

30  adopted by the Public Service Commission; chapter 166, Florida

31  Statutes; and all applicable state and federal rules and

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 1  regulations, including, but not limited to, those provisions

 2  of chapters 202, 212, and 337, Florida Statutes, which apply

 3  to a provider of the services.

 4         (c)  A governmental entity may not exercise its power

 5  or authority in any area, including zoning or land use

 6  regulation, to require any person, including residents of a

 7  particular development, to use or subscribe to any

 8  communication service of a governmental entity.

 9         (d)  A governmental entity shall apply its ordinances,

10  rules, and policies, and exercise any authority under state or

11  federal laws, including, but not limited to, those relating to

12  the following subjects and without discrimination as to itself

13  when providing a communications service or to any private

14  provider of communications services:

15         1.  Access to public rights-of-way; and

16         2.  Permitting, access to, use of, and payment for use

17  of governmental entity-owned poles. The governmental entity is

18  subject to the same terms, conditions, and fees, if any, for

19  access to government-owned poles which the governmental entity

20  applies to a private provider for access.

21         (4)(a)  If a governmental entity was providing, as of

22  April 1, 2005, advanced services, cable services, or

23  telecommunications services, then it is not required to comply

24  with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c),

25  paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph

26  (2)(f), paragraph (2)(k), or paragraph (2)(l), in order to

27  continue to provide advanced services, cable services, or

28  telecommunications services, respectively, but it must comply

29  with and be subject to all other provisions of this section.

30         (b)  If a governmental entity, as of April 1, 2005, had

31  issued debt pledging revenues from an advanced service, cable

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 1  service, or telecommunications service, then it is not

 2  required to comply with paragraph (2)(a), paragraph (2)(b),

 3  paragraph (2)(c), paragraph (2)(d), sub-subparagraph

 4  (2)(e)1.c., paragraph (2)(f), paragraph (2)(k), or paragraph

 5  (2)(l), in order to provide advanced services, cable services,

 6  or telecommunications services, respectively, but it must

 7  comply with and be subject to all other provisions of this

 8  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), paragraph

17  (2)(k), or paragraph (2)(l) in order to provide advanced

18  service, cable service, or telecommunication service,

19  respectively, but it must comply with and be subject to all

20  other provisions of this section.

21  

22  This subsection does not relieve a governmental entity from

23  complying with subsection (5).

24         (5)  Notwithstanding section 542.235, Florida Statutes,

25  or any other law, a governmental entity that provides a

26  communications service is subject to the same prohibitions

27  applicable to private providers under sections 542.18 and

28  542.19, Florida Statutes, as it relates to providing a

29  communications service. In addition, the exemption from

30  complying with paragraph (2)(f), does not confer state action

31  

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 1  immunity, or any other antitrust immunity or exemption, on any

 2  governmental entity providing communications services.

 3         (6)  To ensure the safe and secure transportation of

 4  passengers and freight through an airport facility, as defined

 5  in section 159.27(17), Florida Statutes, an airport authority

 6  or other governmental entity that provides or is proposing to

 7  provide communications services only within the boundaries of

 8  its airport layout plan, as defined in section 333.01(6),

 9  Florida Statutes, to subscribers which are integral and

10  essential to the safe and secure transportation of passengers

11  and freight through the airport facility, is exempt from this

12  section. An airport authority or other governmental entity

13  that provides or is proposing to provide shared-tenant service

14  under section 364.339, Florida Statutes, but not dial tone

15  enabling subscribers to complete calls outside the airport

16  layout plan, to one or more subscribers within its airport

17  layout plan which are not integral and essential to the safe

18  and secure transportation of passengers and freight through

19  the airport facility is exempt from this section. An airport

20  authority or other governmental entity that provides or is

21  proposing to provide communications services to one or more

22  subscribers within its airport layout plan which are not

23  integral and essential to the safe and secure transportation

24  of passengers and freight through the airport facility, or to

25  one or more subscribers outside its airport layout plan, is

26  not exempt from this section. By way of example and not

27  limitation, the integral, essential subscribers may include

28  airlines and emergency service entities, and the nonintegral,

29  nonessential subscribers may include retail shops,

30  restaurants, hotels, or rental car companies.

31  

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 1         (7)  This section does not alter or affect any

 2  provision in the charter, code, or other governing authority

 3  of a governmental entity.

 4         Section 2.  If any provision of this act or its

 5  application to any person or circumstance is held invalid, the

 6  invalidity does not affect other provisions or applications of

 7  the act which can be given effect without the invalid

 8  provision or application, and to this end the provisions of

 9  this act are severable.

10         Section 3.  This act shall take effect upon becoming a

11  law.

12  

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                        CS/SBs 2072 & 1714

15                                 

16  The committee substitute for committee substitute for SB's
    2072 and 1714 clarifies certain definitions. It also requires
17  the Public Service Commission and Department of Revenue to
    post certain notices on its website and allows the Department
18  of Revenue to mail notice or electronically notify
    communications dealers. The committee substitute provides
19  additional limitations on the governing body when issuing
    bonds for the provision of communications services. The
20  committee substitute requires the governmental entity annually
    review their business plan and, if at the end of four years
21  the business plan goals and objectives are not met, hold a
    public hearing to consider certain remedies. The committee
22  substitute specifies conditions that must be met before April
    1, 2005 or May 6, 2005, to be exempt from complying with the
23  bill. Finally, the committee substitute provides a limited
    exemption for airport authorities or other governmental
24  entities' airports.

25  

26  

27  

28  

29  

30  

31  

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