Senate Bill sb0620

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    Florida Senate - 2005                                   SB 620

    By Senator Bennett





    21-468A-05

  1                      A bill to be entitled

  2         An act relating to the wireless emergency

  3         telephone system; amending s. 11.45, F.S.;

  4         removing the annual audit of the Wireless

  5         Emergency Telephone System Fund from the duties

  6         of the Auditor General; amending s. 364.02,

  7         F.S.; revising fee schedules for providers of

  8         interexchange telecommunications services;

  9         amending s. 365.172, F.S.; adding definitions

10         relating to wireless telephone communications;

11         revising duties of the Wireless 911 Board;

12         requiring the hiring of an executive director

13         and an independent, private attorney; providing

14         legislative intent regarding the emergency

15         wireless telephone system; providing standards

16         for local governments to follow when regulating

17         the placement, construction, or modification of

18         a wireless communications facility; directing

19         local governments to grant or deny properly

20         completed applications within specified time

21         periods; providing procedures for a provider of

22         wireless communications services to submit an

23         application for local approval; directing local

24         governments to notify a provider in writing of

25         the deficiencies in an application; directing

26         local governments to notify a provider in

27         writing whether the resubmission of information

28         properly completes the application; permitting

29         local governments to continue requesting

30         information until the application deficiencies

31         are cured; providing for a limited review by a

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 1         local government of an accessory wireless

 2         communications facility; prohibiting local

 3         governments from imposing certain restrictions

 4         on wireless communications facilities;

 5         providing that a person who is adversely

 6         affected by a decision of a local government

 7         relating to a wireless communications facility

 8         may bring an action within a specified period;

 9         providing for the computation of the time

10         period; amending s. 365.173, F.S.; directing

11         how a county may use funds derived from the

12         E911 fee; requiring the board of county

13         commissioners to appropriate the funds to the

14         proper uses; removing the requirement that the

15         Auditor General annually audit the E911 fund;

16         amending s. 337.401, F.S.; requiring

17         municipalities and counties to treat

18         communications services providers in a manner

19         that is competitively neutral and

20         nondiscriminatory when using public roads and

21         rights-of-ways; prohibiting municipalities and

22         counties from requiring communications services

23         providers to obtain a license or franchise from

24         the municipality or county; providing an

25         effective date.

26  

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

28  

29         Section 1.  Subsection (2) of section 11.45, Florida

30  Statutes, is amended to read:

31  

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    Florida Senate - 2005                                   SB 620
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 1         11.45  Definitions; duties; authorities; reports;

 2  rules.--

 3         (2)  DUTIES.--The Auditor General shall:

 4         (a)  Conduct audits of records and perform related

 5  duties as prescribed by law, concurrent resolution of the

 6  Legislature, or as directed by the Legislative Auditing

 7  Committee.

 8         (b)  Annually conduct a financial audit of state

 9  government.

10         (c)  Annually conduct financial audits of all

11  universities and district boards of trustees of community

12  colleges.

13         (d)  Annually conduct financial audits of the accounts

14  and records of all district school boards in counties with

15  populations of fewer than 150,000, according to the most

16  recent federal decennial statewide census.

17         (e)  Annually conduct an audit of the Wireless

18  Emergency Telephone System Fund as described in s. 365.173.

19         (e)(f)  Annually conduct audits of the accounts and

20  records of the Florida School for the Deaf and the Blind.

21         (f)(g)  At least every 2 years, conduct operational

22  audits of the accounts and records of state agencies and

23  universities. In connection with these audits, the Auditor

24  General shall give appropriate consideration to reports issued

25  by state agencies' inspectors general or universities'

26  inspectors general and the resolution of findings therein.

27         (g)(h)  At least every 2 years, conduct a performance

28  audit of the local government financial reporting system,

29  which, for the purpose of this chapter, means any statutory

30  provisions related to local government financial reporting.

31  The purpose of such an audit is to determine the accuracy,

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 1  efficiency, and effectiveness of the reporting system in

 2  achieving its goals and to make recommendations to the local

 3  governments, the Governor, and the Legislature as to how the

 4  reporting system can be improved and how program costs can be

 5  reduced. The Auditor General shall determine the scope of such

 6  audits. The local government financial reporting system should

 7  provide for the timely, accurate, uniform, and cost-effective

 8  accumulation of financial and other information that can be

 9  used by the members of the Legislature and other appropriate

10  officials to accomplish the following goals:

11         1.  Enhance citizen participation in local government;

12         2.  Improve the financial condition of local

13  governments;

14         3.  Provide essential government services in an

15  efficient and effective manner; and

16         4.  Improve decisionmaking on the part of the

17  Legislature, state agencies, and local government officials on

18  matters relating to local government.

19         (h)(i)  Once every 3 years, conduct performance audits

20  of the Department of Revenue's administration of the ad

21  valorem tax laws as described in s. 195.096.

22         (i)(j)  Once every 3 years, conduct financial audits of

23  the accounts and records of all district school boards in

24  counties with populations of 125,000 or more, according to the

25  most recent federal decennial statewide census.

26         (j)(k)  Once every 3 years, review a sample of each

27  state agency's internal audit reports to determine compliance

28  with current Standards for the Professional Practice of

29  Internal Auditing or, if appropriate, government auditing

30  standards.

31  

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 1         (k)(l)  Conduct audits of local governmental entities

 2  when determined to be necessary by the Auditor General, when

 3  directed by the Legislative Auditing Committee, or when

 4  otherwise required by law. No later than 18 months after the

 5  release of the audit report, the Auditor General shall perform

 6  such appropriate followup procedures as he or she deems

 7  necessary to determine the audited entity's progress in

 8  addressing the findings and recommendations contained within

 9  the Auditor General's previous report. The Auditor General

10  shall provide a copy of his or her determination to each

11  member of the audited entity's governing body and to the

12  Legislative Auditing Committee.

13  

14  The Auditor General shall perform his or her duties

15  independently but under the general policies established by

16  the Legislative Auditing Committee. This subsection does not

17  limit the Auditor General's discretionary authority to conduct

18  other audits or engagements of governmental entities as

19  authorized in subsection (3).

20         Section 2.  Subsection (13) of section 364.02, Florida

21  Statutes, is amended to read:

22         364.02  Definitions.--As used in this chapter:

23         (13)  "Telecommunications company" includes every

24  corporation, partnership, and person and their lessees,

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

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

27  telecommunications service to the public for hire within this

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

29  "telecommunications company" does not include:

30  

31  

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 1         (a)  An entity which provides a telecommunications

 2  facility exclusively to a certificated telecommunications

 3  company;

 4         (b)  An entity which provides a telecommunications

 5  facility exclusively to a company which is excluded from the

 6  definition of a telecommunications company under this

 7  subsection;

 8         (c)  A commercial mobile radio service provider;

 9         (d)  A facsimile transmission service;

10         (e)  A private computer data network company not

11  offering service to the public for hire;

12         (f)  A cable television company providing cable service

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

14         (g)  An intrastate interexchange telecommunications

15  company.

16  

17  However, each commercial mobile radio service provider and

18  each intrastate interexchange telecommunications company shall

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

20  chapters 202, 203 and 212 and any fees assessed under s.

21  364.025 pursuant to ss. 364.025 and 364.336. Each intrastate

22  interexchange telecommunications company shall continue to be

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

24  364.336, 364.501, 364.603, and 364.604, shall provide the

25  commission with the such current information as the commission

26  deems necessary to contact and communicate with the company,

27  shall continue to pay intrastate switched network access rates

28  or other intercarrier compensation to the local exchange

29  telecommunications company or the competitive local exchange

30  telecommunications company for the origination and termination

31  of interexchange telecommunications service, and shall reduce

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

 2  364.163(2).

 3         Section 3.  Subsections (3), (6), and (11) and

 4  paragraph (a) of subsection (8) of section 365.172, Florida

 5  Statutes, are amended to read:

 6         365.172  Wireless emergency telephone number "E911."--

 7         (3)  DEFINITIONS.--As used in this section and ss.

 8  365.173 and 365.174, the term:

 9         (a)  "Active prepaid wireless telephone" means a

10  prepaid wireless telephone that has been used by the customer

11  during the month to complete a telephone call for which the

12  customer's card or balance was decremented.

13         (b)  "Administrative review" means the nondiscretionary

14  review conducted by local governmental staff for compliance

15  with local government ordinances, but does not include a

16  public hearing or review of public input.

17         (c)(b)  "Answering point" means the public safety

18  agency that receives incoming 911 calls and dispatches

19  appropriate public safety agencies to respond to the such

20  calls.

21         (d)(c)  "Automatic location identification" means the

22  capability of the E911 service which enables the automatic

23  display of information that defines the approximate geographic

24  location of the wireless telephone used to place a 911 call.

25         (e)(d)  "Automatic number identification" means the

26  capability of the E911 service which enables the automatic

27  display of the 10-digit service number used to place a 911

28  call.

29         (f)(e)  "Board" means the board of directors of the

30  Wireless 911 Board.

31         (g)(f)  "Office" means the State Technology Office.

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 1         (h)  "Building-permit review" means a review for

 2  compliance with building construction standards adopted by the

 3  local government under chapter 553 and does not include a

 4  review for compliance with land development regulations.

 5         (i)  "Collocation" means the situation when a second or

 6  subsequent wireless provider uses an existing structure to

 7  locate a second or subsequent antenna. The term includes the

 8  ground, platform, or roof installation of equipment

 9  enclosures, cabinets, or buildings, and cables, brackets, and

10  other equipment associated with the location and operation of

11  the antennas. A collocation shall not be considered a

12  modification to an existing structure which subjects the

13  structure to greater than building-permit review or which

14  constitutes an impermissible modification of a nonconforming

15  structure.

16         (j)(g)  "E911" is the designation for a wireless

17  enhanced 911 system or wireless enhanced 911 service that is

18  an emergency telephone system or service that provides a

19  subscriber with wireless 911 service and, in addition, directs

20  911 calls to appropriate public safety answering points by

21  selective routing based on the geographical location from

22  which the call originated, or as otherwise provided in the

23  state plan under s. 365.171, and that provides for automatic

24  number identification and automatic location-identification

25  features in accordance with the requirements of the order.

26         (k)  "Existing structure" means a structure that exists

27  at the time an application for permission to place antennas on

28  a structure is filed with a local government. The term

29  includes any structure that can support the attachment of

30  antennas, including, but not limited to, towers, buildings,

31  

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 1  utility structures, light poles, water towers, clock towers,

 2  bell towers, and steeples.

 3         (l)(h)  "Fee" means the E911 fee imposed under

 4  subsection (8).

 5         (m)(i)  "Fund" means the Wireless Emergency Telephone

 6  System Fund established in s. 365.173 and maintained under

 7  this section for the purpose of recovering the costs

 8  associated with providing 911 service or E911 service,

 9  including the costs of implementing the order.

10         (n)  "Land-development regulation" means any ordinance

11  enacted by a local governing body for the regulation of any

12  aspect of development, including an ordinance governing

13  zoning, subdivisions, landscaping, tree protection, or signs,

14  or any other ordinance concerning any aspect of the

15  development of land. The term does not include any

16  building-construction standard adopted under and in compliance

17  with chapter 553.

18         (o)(j)  "Local exchange carrier" means a "competitive

19  local exchange telecommunications company" or a "local

20  exchange telecommunications company" as defined in s. 364.02.

21         (p)(k)  "Local government" means any municipality,

22  county, or political subdivision or agency of a municipality,

23  county, or political subdivision.

24         (q)(l)  "Mobile telephone number" or "MTN" means the

25  telephone number assigned to a wireless telephone at the time

26  of initial activation.

27         (r)(m)  "Order" means:

28         1.  The following orders and rules of the Federal

29  Communications Commission issued in FCC Docket No. 94-102:

30         a.  Order adopted on June 12, 1996, with an effective

31  date of October 1, 1996, the amendments to s. 20.03 and the

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 1  creation of s. 20.18 of Title 47 of the Code of Federal

 2  Regulations adopted by the Federal Communications Commission

 3  pursuant to the such order.

 4         b.  Memorandum and Order No. FCC 97-402 adopted on

 5  December 23, 1997.

 6         c.  Order No. FCC DA 98-2323 adopted on November 13,

 7  1998.

 8         d.  Order No. FCC 98-345 adopted December 31, 1998.

 9         2.  Orders and rules subsequently adopted by the

10  Federal Communications Commission relating to the provision of

11  wireless 911 services.

12         (s)(o)  "Prepaid wireless telephone service" means

13  wireless telephone service that is activated in advance by

14  payment for a finite dollar amount of service or for a finite

15  set of minutes that terminate either upon use by a customer

16  and delivery by the wireless provider of an agreed-upon amount

17  of service corresponding to the total dollar amount paid in

18  advance or within a certain period of time following the

19  initial purchase or activation, unless additional payments are

20  made.

21         (t)(n)  "Provider" or "wireless provider" means a

22  person or entity who provides service and either:

23         1.  Is subject to the requirements of the order; or

24         2.  Elects to provide wireless 911 service or E911

25  service in this state.

26         (u)(p)  "Public agency" means the state and any

27  municipality, county, municipal corporation, or other

28  governmental entity, public district, or public authority

29  located in whole or in part within this state which provides,

30  or has authority to provide, firefighting, law enforcement,

31  ambulance, medical, or other emergency services.

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 1         (v)(q)  "Public safety agency" means a functional

 2  division of a public agency which provides firefighting, law

 3  enforcement, medical, or other emergency services.

 4         (w)(r)  "Rural county" means any county that has a

 5  population of fewer than 75,000.

 6         (x)(s)  "Service" means "commercial mobile radio

 7  service" as provided under ss. 3(27) and 332(d) of the Federal

 8  Telecommunications Act of 1996, 47 U.S.C., ss. 151 et seq.,

 9  and the Omnibus Budget Reconciliation Act of 1993, Pub. L. No.

10  103-66, August 10, 1993, 107 Stat. 312. The term "service"

11  includes the term "wireless" and service provided by any

12  wireless real-time two-way wire communication device,

13  including radio-telephone communications used in cellular

14  telephone service; personal communications service; or the

15  functional or competitive equivalent of a radio-telephone

16  communications line used in cellular telephone service, a

17  personal communications service, or a network radio access

18  line. The term does not include wireless providers that offer

19  mainly dispatch service in a more localized, noncellular

20  configuration; providers offering only data, one-way, or

21  stored-voice services on an interconnected basis; providers of

22  air-to-ground services; or public coast stations.

23         (y)(t)  "Service number" means the unique 10-digit

24  wireless telephone number assigned to a service subscriber.

25         (z)(u)  "Sufficient positive balance" means a dollar

26  amount greater than or equal to the monthly wireless surcharge

27  amount.

28         (aa)  "Tower" means any structure designed primarily to

29  support a wireless provider's antenna.

30         (bb)  "Wireless communications facility" means any

31  equipment or facility used to provide service, and may

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 1  include, but is not limited to, antennas, towers, equipment

 2  enclosures, cabling, antenna brackets, and other such

 3  equipment. Placing a wireless communications facility on an

 4  existing structure does not cause the existing structure to

 5  become a wireless communications facility.

 6         (cc)  "Wireless communications site" means only the

 7  area on the roof, structure, or ground which is designed,

 8  intended to be used, or is used for the location of a wireless

 9  communications facility, and any fencing and landscaping

10  provided in association with the wireless communications

11  facility.

12         (dd)(v)  "Wireless 911 system" or "wireless 911

13  service" means an emergency telephone system or service that

14  provides a subscriber with the ability to reach an answering

15  point by dialing the digits "911." A wireless 911 system is

16  complementary to a wired 911 system as provided for in s.

17  365.171.

18         (6)  AUTHORITY OF THE BOARD; ANNUAL REPORT.--

19         (a)  The board shall:

20         1.  Administer the E911 fee.

21         2.  Implement, maintain, and oversee the fund.

22         3.  Review and oversee the disbursement of the revenues

23  deposited into the fund as provided in s. 365.173. The board

24  may establish a schedule for implementing wireless E911

25  service by service area, and prioritize disbursements of

26  revenues from the fund to providers and rural counties as

27  provided in s. 365.173(2)(b) and (c) pursuant to the schedule,

28  in order to implement E911 services in the most efficient and

29  cost-effective manner.

30         4.  Review documentation submitted by providers which

31  reflects current and projected funds derived from the E911

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 1  fee, and the expenses incurred and expected to be incurred, in

 2  order to comply with the E911 service requirements contained

 3  in the order for the purposes of:

 4         a.  Ensuring that providers receive fair and equitable

 5  distributions of funds from the fund.

 6         b.  Ensuring that providers are not provided

 7  disbursements from the fund which exceed the costs of

 8  providing E911 service, including the costs of complying with

 9  the order.

10         c.  Ascertaining the projected costs of compliance with

11  the requirements of the order and projected collections of the

12  E911 fee.

13         d.  Implementing changes to the allocation percentages

14  or reducing the E911 fee under paragraph (8)(c).

15         5.  Review and approve or reject, in whole or in part,

16  applications submitted by providers for recovery of moneys

17  deposited into the fund.

18         6.  Hire and retain employees, which may include an

19  independent executive director who shall possess experience in

20  the area of telecommunications and emergency 911 issues, for

21  the purposes of performing the technical and administrative

22  functions for the board.

23         7.  Make and enter into contracts, pursuant to chapter

24  287, and execute other instruments necessary or convenient for

25  the exercise of the powers and functions of the board.

26         8.  Take all necessary and reasonable steps by July 1,

27  2000, to secure appropriate information and reports from

28  providers and otherwise perform all of the functions that

29  would be performed by an independent accounting firm prior to

30  completing the request-for-proposals process under subsection

31  (7).

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 1         9.  Sue and be sued, and appear and defend in all

 2  actions and proceedings, in its corporate name to the same

 3  extent as a natural person.

 4         10.  Adopt, use, and alter a common corporate seal.

 5         11.  Elect or appoint the officers and agents that are

 6  required by the affairs of the board.

 7         12.  The board may adopt rules under ss. 120.536(1) and

 8  120.54 to implement this section and ss. 365.173 and 365.174.

 9         13.  Provide coordination, support, and technical

10  assistance to counties to promote the deployment of advanced

11  911 and E911 systems in the state.

12         14.  Provide coordination and support for educational

13  opportunities related to 911 issues for the 911 community in

14  this state.

15         15.  Act as an advocate for issues related to 911

16  system functions, features, and operations to improve the

17  delivery of 911 services to the residents of and visitors to

18  this state.

19         16.  Coordinate input from this state at national

20  forums and associations, to ensure that policies related to

21  911 systems and services are consistent with the policies of

22  the 911 community in this state.

23         17.  Work cooperatively with the system director

24  established in s. 365.171(5) to enhance the state of 911

25  services in this state and to provide unified leadership for

26  all 911 issues through planning and coordination.

27         18.  Do all acts and things necessary or convenient to

28  carry out the powers granted in this section, including but

29  not limited to, consideration of emerging technology and

30  related cost savings.

31  

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 1         19.  Have the authority to secure the services of an

 2  independent, private attorney via invitation to bid, request

 3  for proposals, invitation to negotiate, or professional

 4  contracts for legal services already established at the

 5  Division of Purchasing of the Department of Management

 6  Services.

 7         (b)  Board members shall serve without compensation;

 8  however, members are entitled to per diem and travel expenses

 9  as provided in s. 112.061.

10         (c)  By February 28 of each year, the board shall

11  prepare a report for submission by the office to the Governor,

12  the President of the Senate, and the Speaker of the House of

13  Representatives which reflects, for the immediately preceding

14  calendar year, the quarterly and annual receipts and

15  disbursements of moneys in the fund, the purposes for which

16  disbursements of moneys from the fund have been made, and the

17  availability and status of implementation of E911 service in

18  this state.

19         (d)  By February 28, 2001, the board shall undertake

20  and complete a study for submission by the office to the

21  Governor, the President of the Senate, and the Speaker of the

22  House of Representatives which addresses:

23         1.  The total amount of E911 fee revenues collected by

24  each provider, the total amount of expenses incurred by each

25  provider to comply with the order, and the amount of moneys on

26  deposit in the fund, all as of December 1, 2000.

27         2.  Whether the amount of the E911 fee and the

28  allocation percentages set forth in s. 365.173 should be

29  adjusted to comply with the requirements of the order, and, if

30  so, a recommended adjustment to the E911 fee.

31  

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 1         3.  Any other issues related to providing wireless E911

 2  services.

 3         (8)  WIRELESS E911 FEE.--

 4         (a)  Each home service provider shall collect a monthly

 5  fee imposed on each customer whose place of primary use is

 6  within this state. For purposes of this section, the state and

 7  local governments are not customers. The rate of the fee shall

 8  be 50 cents per month per each service number, beginning

 9  August 1, 1999. The fee shall apply uniformly and be imposed

10  throughout the state.

11         (11)  FACILITATING E911 SERVICE IMPLEMENTATION.--In

12  order to balance the public need for reliable E911 services

13  through reliable wireless systems with the public interest

14  served by governmental zoning and land development regulations

15  and notwithstanding any other law or local ordinance to the

16  contrary, the following standards shall apply to a local

17  government's regulation of the placement, construction, or

18  modification of a wireless communications facility:

19         (a)1.  Collocation Colocation among wireless telephone

20  service providers is encouraged by the state. Collocations

21  that do not increase the height of the structure to which the

22  antennas are to be attached, measured to the highest point of

23  any part of the structure or any appurtenance attached to the

24  structure, and consist of antennas, equipment enclosures, and

25  ancillary facilities that are of a design and configuration

26  consistent with all applicable restrictions or conditions

27  applied to the first antenna placement on the structure and,

28  if applicable, applied to the structure supporting the

29  antennas, are To further facilitate agreements among providers

30  for collocation of their facilities, any antennae and related

31  equipment to service the antennae that is being colocated on

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 1  an existing above-ground structure is not subject to land

 2  development regulation and are subject to building-permit

 3  review only pursuant to s. 163.3202, provided the height of

 4  the existing structure is not increased. However, construction

 5  of the antennae and related equipment is subject to local

 6  building regulations and to any applicable existing permits or

 7  agreements for the such property, buildings, or structures.

 8  However, restrictions, conditions, permits, or agreements

 9  imposed by a local government, acting in its regulatory

10  capacity, which are inconsistent with this section do not

11  apply to the collocations. If some portion of the collocation

12  does not meet the requirements of this paragraph, that portion

13  only may be reviewed under the local government's regulation

14  for a first placement of that portion of the facility. Nothing

15  herein shall relieve the permitholder for or owner of the

16  existing structure of compliance with any applicable condition

17  or requirement of a permit, agreement, or land development

18  regulation, including any aesthetic requirements, or law.

19         2.  An existing tower, including a nonconforming tower,

20  may be structurally modified in order to permit collocation or

21  may be replaced through no more than administrative review and

22  building-permit review if the overall height of the tower is

23  not increased and, if a replacement, the replacement tower is

24  a monopole tower or, if the existing tower is a camouflaged

25  tower, the replacement tower is a like-camouflaged tower.

26         (b)1.  A local government is limited when evaluating a

27  wireless provider's application for placement of a wireless

28  communications facility to issues concerning land development

29  and zoning. A local government may not request information on

30  or review, consider, or evaluate a wireless provider's

31  business need for a specific location for a wireless

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 1  communications site or the need for wireless service to be

 2  provided from a particular site unless the wireless provider

 3  voluntarily offers this information to the local government. A

 4  local government may not request information on or review,

 5  consider, or evaluate the wireless provider's service quality

 6  or the network design of the wireless service unless the

 7  information or materials are directly related to an identified

 8  land development or zoning issue or unless the wireless

 9  provider voluntarily offers the information.

10         2.  The setback or distance separation required of a

11  tower may not exceed the minimum distance necessary to satisfy

12  the structural safety or aesthetic concerns that are protected

13  by the setback or distance separation.

14         3.  A local government may exclude the placement of

15  wireless communications facilities in a residential area or

16  residential zoning district only if the provider can

17  reasonably provide its designed service to the residential

18  area or zone from outside the residential area or zone in a

19  manner consistent with the provider's network design.

20  Exclusion from the residential area may not prohibit or have

21  the effect of prohibiting the provider's service through a

22  technological, structural, economic, practical, or other

23  prohibition or unreasonably discriminate among providers of

24  functionally equivalent services. If the exclusion cannot

25  exist in a residential area or residential zone, the local

26  government and provider must work cooperatively to approve the

27  appropriate structure design in the residential area or

28  residential zone, consistent with the community and the

29  provision of the provider's service. If the communications

30  facilities are excluded from the residential area or zone, the

31  local government and provider must cooperatively work to

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 1  approve the appropriate location and structural design in a

 2  way that is consistent with the community and the provision of

 3  the provider's service.

 4         4.  A local government may impose a fee, surety, or

 5  insurance requirement on a wireless provider when applying to

 6  place, construct, or modify a wireless communications facility

 7  only if a similar fee, surety, or insurance requirement is

 8  also imposed on applicants seeking similar types of zoning,

 9  land use, or building-permit review. Fees for review of

10  applications for wireless communications facilities by

11  consultants or experts who are engaged to review general

12  zoning and land use matters on behalf of the local government

13  may be recovered, but only if the recovery is routinely sought

14  from applicants seeking a similar level of review for zoning

15  or land-development approvals, and any fees must be

16  reasonable.

17         5.  A local government may not impose structural or

18  construction standards on the placement, construction, or

19  modification of wireless communications facilities beyond

20  those adopted by the local government under chapter 553 which

21  apply to all similar types of construction or require

22  information on compliance with the extraordinary standards.

23  However, local governments may request, but not require, that

24  wireless communication facilities be placed, constructed, and

25  modified in accordance with accepted trade construction

26  standards, such as EIA/TIA standards.

27         (c)(b)  Local governments may shall not require

28  wireless providers to provide evidence of a wireless

29  communications facility's compliance with federal regulations,

30  except evidence of compliance with applicable Federal Aviation

31  Administration requirements under 14 C.F.R. s. 77, as amended.

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 1  However, local governments may request shall receive evidence

 2  of proper Federal Communications Commission licensure or other

 3  evidence of Federal Communications Commission authorized

 4  spectrum use from a wireless provider and may request the

 5  Federal Communications Commission to provide information as to

 6  a wireless provider's compliance with federal regulations, as

 7  authorized by federal law.

 8         (d)(c)1.  A local government shall grant or deny each a

 9  properly completed application for a collocation under

10  subparagraph (11)(a)1. of this section within the normal

11  timeframe for a similar building permit review but in no case

12  later than a permit, including permits under paragraph(a), for

13  the collocation of a wireless communications facility on

14  property, buildings, or structures within the local

15  government's jurisdiction within 45 business days after the

16  date the properly completed application is determined to be

17  properly completed initially submitted in accordance with this

18  paragraph the applicable local government application

19  procedures, provided that such permit complies with applicable

20  federal regulations and applicable local zoning or land

21  development regulations, including any aesthetic requirements.

22  Local building regulations shall apply.

23         2.  A local government shall grant or deny each a

24  properly completed application for any other wireless

25  communications facility within the normal timeframe for a

26  similar building permit review but in no case later than a

27  permit for the siting of a new wireless tower or antenna on

28  property, buildings, or structures within the local

29  government's jurisdiction within 90 business days after the

30  date the properly completed application is determined to be

31  properly completed initially submitted in accordance with this

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 1  paragraph the applicable local government application

 2  procedures, provided that such permit complies with applicable

 3  federal regulations and applicable local zoning or land

 4  development regulations, including any aesthetic requirements.

 5  The building-permit review portion of the local government

 6  review must be completed within the normal timeframe for a

 7  similar building permit review but in no case later than 45

 8  business days after the application is completed. Local

 9  building regulations shall apply.

10         3.a.  An application is deemed submitted or resubmitted

11  on the date the application is received by the local

12  government. The local government shall notify the permit

13  applicant,in writing, within 20 business days after the date

14  the application is initially submitted as to whether the

15  application is, for administrative purposes only, properly

16  completed and has been properly submitted. However, the such

17  determination shall not be deemed as an approval of the

18  application. If the application is not completed in compliance

19  with the local government's regulations, the Such notification

20  must shall indicate with specificity any deficiencies in the

21  required documents or deficiencies in the content of the

22  required documents which, if cured, shall make the application

23  properly completed. Upon resubmission of information to cure

24  the stated deficiencies, the local government shall notify the

25  applicant, in writing, within 20 business days after the

26  additional information is submitted whether the application is

27  properly completed or if there are any remaining deficiencies

28  that must be cured. Any deficiencies in document type or

29  content not specified by the local government does not make an

30  application incomplete and are waived. Notwithstanding this

31  sub-subparagraph, if a specified deficiency is not properly

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 1  cured when the applicant resubmits its application to comply

 2  with the notice of deficiencies, the local government may

 3  continue to request the information until such time as the

 4  specified deficiency is cured.

 5         b.  If the local government fails to grant or deny a

 6  properly completed application for a wireless communications

 7  facility permit which has been properly submitted within the

 8  timeframes set forth in this paragraph, the application

 9  paragraph, the permit shall be deemed automatically approved

10  and the applicant provider may proceed with placement of the

11  such facilities without interference or penalty. The

12  timeframes specified in subparagraph subparagraphs 1. and 2.

13  may shall be extended only to the extent that the application

14  permit has not been granted or denied because the local

15  government's procedures generally applicable to all

16  applications permits, require action by the governing body and

17  such action has not taken place within the timeframes

18  specified in subparagraph subparagraphs 1. and 2. Under these

19  such circumstances, the local government must act to either

20  grant or deny the application permit at its next regularly

21  scheduled meeting or, otherwise, the application is permit

22  shall be deemed to be automatically approved.

23         c.  To be effective, a waiver of the timeframes set

24  forth in this paragraph herein must be voluntarily agreed to

25  by the applicant and the local government. A local government

26  may request, but not require, a waiver of the timeframes by

27  the applicant an entity seeking a permit, except that, with

28  respect to a specific permit, a one-time waiver may be

29  required in the case of a declared local, state, or federal

30  emergency that directly affects the administration of all

31  permitting activities of the local government.

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 1         (d)  Any additional wireless communications facilities,

 2  such as communication cables, adjacent accessory structures,

 3  or adjacent accessory equipment used in the provision of

 4  cellular, enhanced specialized mobile radio, or personal

 5  communications services, required within the existing secured

 6  equipment compound within the existing site shall be deemed a

 7  permitted use or activity. Local building and land development

 8  regulations, including any aesthetic requirements, shall

 9  apply.

10         (e)  A local government may not impose square footage

11  or height limitations on equipment enclosures, cabinets, or

12  buildings inconsistent with those required for other

13  structures in the same zoning district. This paragraph

14  supersedes any existing limitation imposed on equipment

15  enclosures, cabinets, or buildings by ordinance, resolution,

16  or land development regulation.

17         (f)  The replacement of or modification to a wireless

18  communications facility, except a tower, that results in a

19  wireless communications facility of similar size, type, and

20  appearance and the replacement or modification of equipment

21  that is not visible from outside the wireless communications

22  site are subject no more than applicable to building-permit

23  review.

24         (g)(e)  Any other provision of law to the contrary

25  notwithstanding, the Department of Management Services shall

26  negotiate, in the name of the state, leases for wireless

27  communications facilities that provide access to state

28  government-owned property not acquired for transportation

29  purposes, and the Department of Transportation shall

30  negotiate, in the name of the state, leases for wireless

31  communications facilities that provide access to property

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 1  acquired for state rights-of-way. On property acquired for

 2  transportation purposes, leases shall be granted in accordance

 3  with s. 337.251. On other state government-owned property,

 4  leases shall be granted on a space available, first-come,

 5  first-served basis. Payments required by state government

 6  under a lease must be reasonable and must reflect the market

 7  rate for the use of the state government-owned property. The

 8  Department of Management Services and the Department of

 9  Transportation are authorized to adopt rules for the terms and

10  conditions and granting of any such leases.

11         (h)  Any person adversely affected by any action or

12  failure to act by a local government which is inconsistent

13  with this subsection may bring an action in a court of

14  competent jurisdiction within 30 days after the action or the

15  failure to act. The court shall consider the matter on an

16  expedited basis.

17         (f)  Any wireless telephone service provider may report

18  to the board no later than September 1, 2003, the specific

19  locations or general areas within a county or municipality

20  where the provider has experienced unreasonable delay to

21  locate wireless telecommunications facilities necessary to

22  provide the needed coverage for compliance with federal Phase

23  II E911 requirements using its own network. The provider shall

24  also provide this information to the specifically identified

25  county or municipality no later than September 1, 2003. Unless

26  the board receives no report that unreasonable delays have

27  occurred, the board shall, no later than September 30, 2003,

28  establish a subcommittee responsible for developing a balanced

29  approach between the ability of providers to locate wireless

30  facilities necessary to comply with federal Phase II E911

31  requirements using the carrier's own network and the desire of

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 1  counties and municipalities to zone and regulate land uses to

 2  achieve public welfare goals. If a subcommittee is

 3  established, it shall include representatives from the Florida

 4  Telecommunications Industry Association, the Florida

 5  Association of Counties, and the Florida League of Cities. The

 6  subcommittee shall be charged with developing recommendations

 7  for the board and any specifically identified municipality or

 8  county to consider regarding actions to be taken for

 9  compliance for federal Phase II E911 requirements. In the

10  annual report due to the Governor and the Legislature by

11  February 28, 2004, the board shall include any recommendations

12  developed by the subcommittee to address compliance with

13  federal Phase II E911 requirements.

14         Section 4.  Paragraph (a) of subsection (2) and

15  subsection (3) of section 365.173, Florida Statutes, are

16  amended to read:

17         365.173  Wireless Emergency Telephone System Fund.--

18         (2)  Subject to any modifications approved by the board

19  pursuant to s. 365.172(8)(c), the moneys in the fund shall be

20  distributed and used only as follows:

21         (a)  Forty-four percent of the moneys shall be

22  distributed each month to counties, based on the total number

23  of wireless subscriber billing addresses in each county, for

24  payment of:

25         1.  Recurring costs of providing 911 or E911 service,

26  as provided by s. 365.171(13)(a)6.

27         2.  Costs to comply with the requirements for E911

28  service contained in the order and any future rules related to

29  the order.

30  

31  

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 1  Any county that receives funds under this paragraph shall

 2  establish a fund to be used exclusively for the receipt and

 3  expenditure of the revenues collected under this paragraph.

 4  All fees placed in the fund, and any interest accrued, shall

 5  be used solely for costs described in subparagraphs 1 and 2.

 6  The money collected and interest earned in this fund shall be

 7  appropriated for these purposes by the county commissioners

 8  and incorporated into the annual county budget. The fund shall

 9  be included within the financial audit performed in accordance

10  with s. 218.39. A county may carry forward the, for up to 3

11  successive calendar years, up to 30 percent of the total funds

12  disbursed to the county by the board during a calendar year

13  for expenditures for capital outlay, capital improvements, or

14  equipment replacement, if the such expenditures are made for

15  the purposes specified in this paragraph.

16         (3)  The Auditor General shall annually audit the fund

17  to ensure that moneys in the fund are being managed in

18  accordance with this section and s. 365.172. The Auditor

19  General shall provide a report of the annual audit to the

20  board.

21         Section 5.  Paragraph (a) of subsection (3) of section

22  337.401, Florida Statutes, is amended to read:

23         337.401  Use of right-of-way for utilities subject to

24  regulation; permit; fees.--

25         (3)(a)1.  Because of the unique circumstances

26  applicable to providers of communications services, including,

27  but not limited to, the circumstances described in paragraph

28  (e) and the fact that federal and state law require the

29  nondiscriminatory treatment of providers of telecommunications

30  services, and because of the desire to promote competition

31  among providers of communications services, it is the intent

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 1  of the Legislature that municipalities and counties treat

 2  providers of communications services in a nondiscriminatory

 3  and competitively neutral manner when imposing rules or

 4  regulations governing the placement or maintenance of

 5  communications facilities in the public roads or

 6  rights-of-way. Rules or regulations imposed by a municipality

 7  or county relating to providers of communications services

 8  placing or maintaining communications facilities in its roads

 9  or rights-of-way must be generally applicable to all providers

10  of communications services and, notwithstanding any other law,

11  may not require a provider of communications services, except

12  as otherwise provided in subparagraph 2., to apply for or

13  enter into an individual license, franchise, or other

14  agreement with the municipality or county as a condition of

15  placing or maintaining communications facilities in its roads

16  or rights-of-way. In addition to other reasonable rules or

17  regulations that a municipality or county may adopt relating

18  to the placement or maintenance of communications facilities

19  in its roads or rights-of-way under this subsection, a

20  municipality or county may require a provider of

21  communications services that places or seeks to place

22  facilities in its roads or rights-of-way to register with the

23  municipality or county and to provide the name of the

24  registrant; the name, address, and telephone number of a

25  contact person for the registrant; the number of the

26  registrant's current certificate of authorization issued by

27  the Florida Public Service Commission or the Federal

28  Communications Commission; and proof of insurance or

29  self-insuring status adequate to defend and cover claims.

30  Nothing in this subparagraph is intended to limit or expand

31  any existing zoning or land use authority of a municipality or

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 1  county; however, a municipality or county shall exercise no

 2  such zoning or land use authority so as to treat

 3  communications services providers in a manner that is

 4  competitively neutral and nondiscriminatory in the use of the

 5  public road and rights-of-way and may not require an

 6  individual license, franchise, or other agreement as

 7  prohibited by this subparagraph.

 8         2.  Notwithstanding the provisions of subparagraph 1.,

 9  a municipality or county may, as provided by 47 U.S.C. s. 541,

10  award one or more franchises within its jurisdiction for the

11  provision of cable service, and a provider of cable service

12  shall not provide cable service without such franchise. Each

13  municipality and county retains authority to negotiate all

14  terms and conditions of a cable service franchise allowed by

15  federal law and s. 166.046, except those terms and conditions

16  related to franchise fees and the definition of gross revenues

17  or other definitions or methodologies related to the payment

18  or assessment of franchise fees and permit fees as provided in

19  paragraph (c) on providers of cable services. A municipality

20  or county may exercise its right to require from providers of

21  cable service in-kind requirements, including, but not limited

22  to, institutional networks, and contributions for, or in

23  support of, the use or construction of public, educational, or

24  governmental access facilities to the extent permitted by

25  federal law. A provider of cable service may exercise its

26  right to recover any such expenses associated with such

27  in-kind requirements, to the extent permitted by federal law.

28         Section 6.  This act shall take effect July 1, 2005.

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Removes the annual audit of the Wireless Emergency
      Telephone System Fund from the duties of the Auditor
 4    General. Revises fee schedules for interexchange
      telecommunications providers. Adds definitions relating
 5    to wireless telephone communications. Revises duties of
      the Wireless 911 Board. Provides legislative intent
 6    regarding the emergency wireless telephone system.
      Provides standards for local governments to follow when
 7    regulating the placement, construction, or modification
      of a wireless communications facility. Directs local
 8    governments to grant or deny properly completed
      applications within specified time periods. Establishes
 9    procedures by which a provider of wireless communications
      services may submit an application for local approval.
10    Directs local governments to notify a provider in writing
      of the deficiencies in an application and whether the
11    resubmission of information properly completes the
      application. Permits local governments to continue
12    requesting information until the application deficiencies
      are cured. Provides for a limited review by a local
13    government of an accessory wireless communications
      facility. Prohibits local governments from imposing
14    certain restrictions on wireless communications
      facilities. Permits a person who is adversely affected by
15    a decision of a local government relating to a wireless
      communications facility to bring an action within a
16    specified period. Directs how a county may use funds
      derived from the E911 fee. Requires the board of county
17    commissioners to appropriate the funds to the proper
      uses. Removes the requirement that the Auditor General
18    annually audit the E911 fund. Requires municipalities and
      counties to treat communications services providers in a
19    manner that is competitively neutral and
      nondiscriminatory when using public roads and
20    rights-of-ways. Prohibits municipalities and counties
      from requiring communications services providers to
21    obtain a license or franchise from the municipality or
      county.
22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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