| 1 | A bill to be entitled |
| 2 | An act relating to underground electric distribution |
| 3 | facilities; creating s. 366.201, F.S.; creating the |
| 4 | "Reliable Electricity Enhancement Act"; creating s. |
| 5 | 366.202, F.S.; providing legislative intent; creating s. |
| 6 | 366.203, F.S.; providing that as of a specified date |
| 7 | placement of electric distribution facilities underground |
| 8 | is the industry standard for new distribution facilities; |
| 9 | providing an exception; requiring public utilities to |
| 10 | aggressively promote and encourage the timely and orderly |
| 11 | conversion of existing overhead distribution facilities to |
| 12 | underground facilities; directing the Public Service |
| 13 | Commission to adopt rules to encourage and promote the |
| 14 | conversion from overhead facilities to underground |
| 15 | facilities; creating s. 366.204, F.S.; providing |
| 16 | additional duties of a public utility; requiring certain |
| 17 | reports; providing a penalty; creating s. 366.205, F.S.; |
| 18 | requiring the commission to ensure that only the minimum |
| 19 | reasonable general and indirect costs associated with |
| 20 | underground facilities are included as costs of the |
| 21 | underground facilities for any purpose; creating 366.206, |
| 22 | F.S.; encouraging the use of rights-of-way for the |
| 23 | location of underground facilities; providing a rebuttable |
| 24 | presumption that rights-of-way are sufficient for the |
| 25 | location of underground facilities; providing an |
| 26 | exception; requiring certain easement rights granted to a |
| 27 | public utility to be temporary and ultimately vest in the |
| 28 | governmental entity having jurisdiction; creating s. |
| 29 | 366.207, F.S.; encouraging the use of rear yards as |
| 30 | locations for placing underground utilities; creating s. |
| 31 | 366.208, F.S.; encouraging competition in providing |
| 32 | utility construction services; requiring public utilities |
| 33 | to make certain competitive alternatives available to |
| 34 | governmental entities; creating ss. 125.3402, 166.261, |
| 35 | 189.4052, and 190.018, F.S.; declaring that it is the |
| 36 | policy of the state that counties, municipalities, special |
| 37 | districts, and community development districts convert |
| 38 | electric distribution, telephone, and cable television |
| 39 | facilities from overhead systems to underground |
| 40 | facilities; providing that if a county, municipality, |
| 41 | special district, or community development district pays |
| 42 | for part or all of the cost of converting overhead |
| 43 | facilities to underground facilities, it must receive fair |
| 44 | credit for the payments if and when the entity elects to |
| 45 | establish an electric utility, telephone, or cable |
| 46 | television system; creating ss. 125.3403, 166.262, |
| 47 | 189.4053, and 190.019, F.S.; providing the contractual |
| 48 | terms that must be included in a utility franchise; |
| 49 | prohibiting a governmental entity from giving or granting |
| 50 | a franchise without reserving to the governmental entity |
| 51 | the right to purchase the utility at the expiration of the |
| 52 | franchise; providing that the utility franchise is void |
| 53 | under certain circumstances; amending s. 364.03, F.S.; |
| 54 | directing the commission and the entities that provide |
| 55 | service in this state to consistently and continuously |
| 56 | promote and encourage all reasonable means to enhance the |
| 57 | reliability of the telecommunications system in the state; |
| 58 | amending s. 366.04, F.S.; declaring that the installation |
| 59 | of underground electric distribution facilities to replace |
| 60 | existing overhead facilities is in the public interest in |
| 61 | the state; exempting certain government-owned electric |
| 62 | utilities from the commission's jurisdiction over |
| 63 | territorial disputes; providing an effective date. |
| 64 |
|
| 65 | Be It Enacted by the Legislature of the State of Florida: |
| 66 |
|
| 67 | Section 1. Section 366.201, Florida Statutes, is created |
| 68 | to read: |
| 69 | 366.201 Short title.--Sections 366.201-366.208 may be |
| 70 | cited as the "Reliable Electricity Enhancement Act." |
| 71 | Section 2. Section 366.202, Florida Statutes, is created |
| 72 | to read: |
| 73 | 366.202 Legislative findings and intent.-- |
| 74 | (1) The Legislature finds that: |
| 75 | (a) More than two-thirds of all new electric distribution |
| 76 | facilities currently being installed in this state are being |
| 77 | installed as underground facilities; |
| 78 | (b) More than one-third of all electric distribution |
| 79 | facilities currently in service in this state are underground |
| 80 | facilities, and that approximately one-half of all customers |
| 81 | served by public utilities are served from underground |
| 82 | facilities; |
| 83 | (c) Underground distribution service is the preferred |
| 84 | standard of service in this state and that underground service |
| 85 | is, in fact, becoming the general standard of service for public |
| 86 | utilities; |
| 87 | (d) Many reports indicate that areas served by underground |
| 88 | distribution facilities had less severe and less prolonged |
| 89 | losses of electric service during the hurricanes that struck the |
| 90 | state in 2004 and 2005; and |
| 91 | (e) A significant number of meteorological experts are |
| 92 | predicting that more hurricanes are likely to strike the state |
| 93 | with significantly greater frequency over the foreseeable future |
| 94 | than the state experienced in the 50-year period before 2004. |
| 95 | (2) The Legislature further finds that reliability of |
| 96 | electric service is critical to the public health, safety, and |
| 97 | welfare of the residents of the state, and that minimizing the |
| 98 | severity, extent, and duration of outages of electric service is |
| 99 | likewise critical to the health, safety, and welfare. |
| 100 | Accordingly, the Legislature directs the Public Service |
| 101 | Commission and the public utilities that provide service in this |
| 102 | state to consistently and continuously seek, promote, and |
| 103 | encourage all reasonable means of enhancing and maximizing the |
| 104 | reliability of the electric supply system, including |
| 105 | distribution systems as well as transmission and generation |
| 106 | systems. Further, the Legislature directs the commission and all |
| 107 | public utilities to aggressively promote and encourage the |
| 108 | installation of underground distribution facilities to the |
| 109 | maximum extent feasible, and to aggressively promote and |
| 110 | encourage the timely and orderly conversion of existing overhead |
| 111 | facilities to underground facilities. |
| 112 | (3) The mandatory provisions of ss. 366.201-366.208 apply |
| 113 | only to public utilities as defined in s. 366.02. Municipal and |
| 114 | cooperative utilities providing electric service in the state |
| 115 | are encouraged to seek and implement all reasonable means of |
| 116 | enhancing electric service reliability in the state, and to |
| 117 | install underground electric distribution facilities to the |
| 118 | maximum extent feasible, giving due consideration to the unique |
| 119 | circumstances of each utility. |
| 120 | Section 3. Section 366.203, Florida Statutes, is created |
| 121 | to read: |
| 122 | 366.203 Standard of service.-- |
| 123 | (1) Effective January 1, 2007, underground electric |
| 124 | distribution is presumed to constitute the standard for new |
| 125 | electric distribution service in this state. This presumption is |
| 126 | rebuttable in specific cases if, in proceedings before the |
| 127 | commission, a clear and convincing showing is made that, in a |
| 128 | particular application, underground electric distribution is |
| 129 | less desirable than overhead facilities. To rebut the |
| 130 | presumption, the commission must consider the relevant factors, |
| 131 | including the relative reliability of underground compared to |
| 132 | overhead systems in the particular application, the installation |
| 133 | costs for underground and overhead facilities, the operating and |
| 134 | maintenance costs for overhead and underground facilities, and |
| 135 | any other identifiable costs associated with overhead and |
| 136 | underground facilities. The commission must also consider, |
| 137 | without limitation: |
| 138 | (a) The overall cost of accidental electrocutions and |
| 139 | temporary and permanent disabilities to utility employees and |
| 140 | the public; |
| 141 | (b) The overall cost of vehicular accidents involving |
| 142 | distribution facilities; |
| 143 | (c) Ascertainable and measurable costs of adverse health |
| 144 | effects; |
| 145 | (d) The costs associated with rights-of-way and easements; |
| 146 | (e) The total operating and maintenance costs, including |
| 147 | costs of tree trimming for overhead facilities; |
| 148 | (f) The total costs incurred and losses sustained by |
| 149 | utility customers as a result of outages due to storm damage; |
| 150 | and |
| 151 | (g) The costs of associated insurance, attorney's fees, |
| 152 | and legal settlements and costs. |
| 153 |
|
| 154 | In any proceedings before the commission, the commission shall |
| 155 | specifically include, as an estimated cost of the overhead |
| 156 | facilities being considered, the costs of having to remove and |
| 157 | replace a new overhead system due to storm damage at least once |
| 158 | during its projected useful life. |
| 159 | (2) Effective July 1, 2006, all public utilities are |
| 160 | directed to aggressively seek, promote, and encourage the timely |
| 161 | and orderly conversion of existing overhead distribution |
| 162 | facilities to underground facilities, so that the majority of |
| 163 | persons served by public utilities will come to enjoy the |
| 164 | reliability benefits of underground distribution service. |
| 165 | Specifically, it is the intent of the Legislature that, to the |
| 166 | maximum extent feasible, existing overhead facilities be |
| 167 | converted to underground systems in a timely and orderly way, |
| 168 | with preference and priority given to overhead facilities and |
| 169 | systems that are being relocated due to road-widening or other |
| 170 | similar activities, and to overhead systems that are at or near |
| 171 | the end of their useful lives. |
| 172 | (3) The commission shall adopt rules to encourage and |
| 173 | promote, to the maximum extent feasible, the conversion of |
| 174 | existing overhead systems to underground facilities in a timely |
| 175 | and orderly manner giving due consideration to the factors |
| 176 | deemed relevant by the commission and consistent with the public |
| 177 | interest, including: |
| 178 | (a) The overall cost of accidental electrocutions and |
| 179 | temporary and permanent disabilities to both utility employees |
| 180 | and others; |
| 181 | (b) The overall cost of vehicular accidents involving |
| 182 | distribution facilities; |
| 183 | (c) Ascertainable and measurable costs of adverse health |
| 184 | effects; |
| 185 | (d) The costs associated with rights-of-way and easements; |
| 186 | (e) The total operating and maintenance costs, including, |
| 187 | without limitation, costs of tree trimming for overhead |
| 188 | facilities; |
| 189 | (f) The total costs incurred and losses sustained by |
| 190 | utility customers as a result of outages due to storm damage; |
| 191 | and |
| 192 | (g) The costs of associated insurance, attorney's fees, |
| 193 | and legal settlements and costs. |
| 194 | Section 4. Section 366.204, Florida Statutes, is created |
| 195 | to read: |
| 196 | 366.204 Duties of public utilities.-- |
| 197 | (1) In addition to the general duties set forth in s. |
| 198 | 366.03, each public utility shall: |
| 199 | (a) Maintain adequate and accurate records and data |
| 200 | regarding the relative reliability of overhead and underground |
| 201 | facilities, including the number, frequency, and duration of all |
| 202 | outages on the distribution system; whether each outage was the |
| 203 | result of an event directly affecting overhead or underground |
| 204 | facilities; and any other information that the commission may |
| 205 | prescribe by rule to be maintained. |
| 206 | (b) At least once every 2 years, prepare a comprehensive |
| 207 | and detailed report concerning the relative reliability of |
| 208 | overhead and underground systems, including summaries of the |
| 209 | number, frequency, and duration of all outages on the |
| 210 | distribution system and the causes of the outages; whether the |
| 211 | outages resulted from events directly affecting overhead or |
| 212 | underground facilities; and any other information that the |
| 213 | commission may prescribe by rule as appropriate for inclusion in |
| 214 | the reports. |
| 215 | (c) Maintain accurate records regarding the costs of |
| 216 | installing, maintaining, and operating overhead and underground |
| 217 | systems and facilities, such that the original cost, approximate |
| 218 | depreciated value, and operating and maintenance costs of |
| 219 | underground and overhead facilities, and also the removal cost |
| 220 | of overhead facilities, can be readily compiled and calculated |
| 221 | separately and comparably for overhead and underground |
| 222 | facilities. |
| 223 | (d) Timely prepare and provide, at the request of any |
| 224 | local governmental unit, a report concerning the relative |
| 225 | reliability of the electric distribution systems providing |
| 226 | service within the geographic jurisdiction of the governmental |
| 227 | unit, at no cost to the governmental unit. |
| 228 | (e) Timely prepare and provide, at the request of any |
| 229 | local governmental unit, a report showing in reasonable and |
| 230 | understandable detail the estimated original cost, approximate |
| 231 | depreciated value, and operating and maintenance costs of |
| 232 | underground and overhead facilities, and also the removal cost |
| 233 | of overhead facilities, at no cost to the governmental unit. |
| 234 | (f) Work cooperatively, proactively, promptly, diligently, |
| 235 | and in good faith with any local governmental unit or |
| 236 | homeowners' association that wishes to participate in converting |
| 237 | existing overhead systems to underground facilities. |
| 238 | (2) By January 1, 2007, each public utility shall prepare |
| 239 | a detailed report regarding: |
| 240 | (a) The damage to overhead and underground facilities on |
| 241 | each public utility's distribution system caused by the |
| 242 | hurricanes that struck the state in 2004 and 2005, in order that |
| 243 | the extent and cost of damage to overhead and underground |
| 244 | facilities can be readily and fairly compared; and |
| 245 | (b) The outages sustained by each public utility's |
| 246 | customers due to damage to the utility's distribution systems |
| 247 | caused by the hurricanes that struck the state in 2004 and 2005, |
| 248 | in order that the causes of the outages, the points on the |
| 249 | distribution system at which the outages originated, and the |
| 250 | duration of the outages can be readily and fairly compared as |
| 251 | between overhead and underground facilities. |
| 252 | (3) A public utility may not willfully discourage or fail |
| 253 | to seek, promote, and encourage the installation of new |
| 254 | underground utility facilities or the conversion of existing |
| 255 | overhead systems to underground systems. Any public utility that |
| 256 | violates this subsection is subject to the penalties set forth |
| 257 | in s. 350.127. |
| 258 | Section 5. Section 366.205, Florida Statutes, is created |
| 259 | to read: |
| 260 | 366.205 Limitation on inclusion of general and indirect |
| 261 | costs in determining costs or payments for underground |
| 262 | facilities.--In any proceedings in which the cost of, or payment |
| 263 | for, underground facilities is at issue, the commission shall |
| 264 | ensure that only the minimum reasonable general and indirect |
| 265 | costs associated with underground facilities, whether such |
| 266 | facilities are contemplated or have been installed, are included |
| 267 | as costs of the underground facilities for any purpose. This |
| 268 | section shall be strictly construed to ensure that no general or |
| 269 | indirect costs are assigned or allocated to underground |
| 270 | facilities, or accounted for in such a way as to provide a |
| 271 | disincentive to the installation of underground facilities, |
| 272 | unless the general or indirect costs are properly attributable |
| 273 | to the costs of underground facilities. |
| 274 | Section 6. Section 366.206, Florida Statutes, is created |
| 275 | to read: |
| 276 | 366.206 Rights-of-way; easements.-- |
| 277 | (1) The use of rights-of-way for the location of |
| 278 | underground facilities is encouraged to the maximum extent |
| 279 | feasible, consistent with safety and cost considerations. It is |
| 280 | presumed, subject to a rebuttal by clear and convincing evidence |
| 281 | in a specific proceeding before the commission, that rights-of- |
| 282 | way are sufficient for the location of underground facilities. |
| 283 | If a municipality, county, special district, or other |
| 284 | governmental entity agrees to be responsible for the costs |
| 285 | associated with a future relocation of facilities located within |
| 286 | the governmental entity's rights-of-way, the issue of future |
| 287 | relocation costs to the public utility is irrelevant when |
| 288 | determining whether the governmental entity's right-of-way is |
| 289 | sufficient for the location of underground facilities or if an |
| 290 | easement is required for the facilities. |
| 291 | (2) All easements granted to public utilities on or after |
| 292 | July 1, 2006, must state that all permanent rights granted by |
| 293 | the easement vest in the governmental entity in whose geographic |
| 294 | jurisdiction the easement exists, with the public utility having |
| 295 | the rights that are granted by the easement only for so long as |
| 296 | it holds a franchise to provide service within the governmental |
| 297 | entity's jurisdiction. Each easement must provide specifically |
| 298 | that the easement, and the rights thereunder, transfer |
| 299 | automatically, by operation of the provisions of the easement |
| 300 | itself, to the respective governmental entity upon termination |
| 301 | or expiration of any franchise granted to the public utility, or |
| 302 | upon the governmental entity's establishing an electric utility |
| 303 | system to serve within any part, or all, of its geographic |
| 304 | jurisdiction. |
| 305 | Section 7. Section 366.207, Florida Statutes, is created |
| 306 | to read: |
| 307 | 366.207 Use of rear yard easements encouraged.--If |
| 308 | existing overhead facilities are located within rear yard |
| 309 | easements, using rear yard easements for the installation of new |
| 310 | underground facilities is encouraged. The utility may require |
| 311 | that the easements be kept clear of obstructions in order to |
| 312 | ensure access to the underground facilities. |
| 313 | Section 8. Section 366.208, Florida Statutes, is created |
| 314 | to read: |
| 315 | 366.208 Encouraging competition in providing utility |
| 316 | construction services.--It is the policy of the state to |
| 317 | promote, to the maximum extent feasible and practicable, |
| 318 | competition in all economic activity in the state, including the |
| 319 | provision of utility construction services. Public utilities |
| 320 | shall pursue competitive alternatives from qualified vendors and |
| 321 | make such alternatives available to governmental entities that |
| 322 | desire to convert existing overhead facilities to underground |
| 323 | facilities. |
| 324 | Section 9. Section 125.3402, Florida Statutes, is created |
| 325 | to read: |
| 326 | 125.3402 Credits to counties for contributions paid toward |
| 327 | the cost of underground distribution facilities.-- |
| 328 | (1) It is the policy of the state to encourage counties to |
| 329 | convert electric distribution, telephone, and cable television |
| 330 | facilities providing service within their geographic |
| 331 | jurisdictions from overhead systems to underground facilities in |
| 332 | order to secure for their residents the benefits of such |
| 333 | underground facilities and systems. It is further the policy of |
| 334 | the state to ensure that, if a county pays for part or all of |
| 335 | the cost of converting overhead facilities to underground |
| 336 | facilities, it receive fair credit for such payments if and when |
| 337 | the county elects to establish a county-owned electric utility, |
| 338 | telephone, or cable television systems. |
| 339 | (2) If a county has paid a differential cost reflecting |
| 340 | the difference in cost between the cost of the underground |
| 341 | facilities installed and the cost of equivalent new overhead |
| 342 | facilities for the installation of new underground facilities, |
| 343 | and the county subsequently decides to purchase the public |
| 344 | utility's or other provider's facilities as part of establishing |
| 345 | a county-owned electric utility, telephone, or cable television |
| 346 | system, whether under eminent domain or other proceedings, at |
| 347 | the county's option: |
| 348 | (a) In any proceedings to determine the purchase price for |
| 349 | the facilities being purchased, the county shall receive full |
| 350 | credit for such differential payments made; or |
| 351 | (b) The county shall have the right to purchase the |
| 352 | underground system by paying the public utility or other |
| 353 | provider the difference between the cost of the new underground |
| 354 | system installed and the payment that the county made. |
| 355 |
|
| 356 | In order for a county to receive fair credit for the value that |
| 357 | it contributed to convert overhead facilities to underground |
| 358 | facilities, this section applies to payments made by the county |
| 359 | before or after July 1, 2006. This section applies whether the |
| 360 | county paid the public utility or other provider to install the |
| 361 | new underground facilities or engaged a private contractor to |
| 362 | install the underground facilities and received a credit from |
| 363 | the public utility or other provider. |
| 364 | (3) If a county pays the full cost of installing new |
| 365 | underground facilities without any credit from the public |
| 366 | utility or other provider for the cost of an equivalent new |
| 367 | overhead facility, the county has a vested fee simple ownership |
| 368 | right in the underground facilities along with any easements and |
| 369 | easement rights associated with the underground facilities. |
| 370 | However, the public utility or other provider retains sufficient |
| 371 | rights of access in order to operate and maintain the |
| 372 | underground facilities under the terms and conditions agreed |
| 373 | upon by the county and the public utility or other provider. |
| 374 | When considering such terms and conditions, the Legislature |
| 375 | finds and states that a leasehold interest of the public |
| 376 | utility, at an annual lease payment of $1 per year for all |
| 377 | facilities and property, including any applicable easement |
| 378 | rights, located within the county's geographic area is |
| 379 | sufficient for this purpose. The Legislature further finds and |
| 380 | declares that, alternatively, the public utility or other |
| 381 | provider has a vested time-limited ownership interest with the |
| 382 | fee simple title remaining vested in the county. This interest |
| 383 | may not exceed the duration of any franchise agreement and is |
| 384 | deemed sufficient to satisfy the public utility's or other |
| 385 | provider's need for an ownership interest to allow it adequate |
| 386 | access to the underground facilities in order to operate and |
| 387 | maintain the systems. If the public utility or other provider |
| 388 | and the county are unable to agree on this matter, the county, |
| 389 | in its sole discretion, shall determine which of the ownership |
| 390 | structures shall apply. |
| 391 | Section 10. Section 125.3403, Florida Statutes, is created |
| 392 | to read: |
| 393 | 125.3403 Terms for which a utility franchise may be |
| 394 | granted; conditions.-- |
| 395 | (1)(a) A county may not give or grant any franchise or |
| 396 | right to use a street for operating along or across the street a |
| 397 | street railroad, water works, telephone, cable television, gas |
| 398 | or electric business, or other business requiring the use of |
| 399 | mains, pipes, wires, or similar facilities in any street for a |
| 400 | term exceeding 30 years. At the sole option and discretion of |
| 401 | the county, any county that is negotiating for a new franchise, |
| 402 | or in which a renewal franchise agreement is being negotiated as |
| 403 | the current franchise is about to expire or has expired, may |
| 404 | require that any new franchise agreement be for a period of 5 |
| 405 | years. |
| 406 | (b) If the entity with whom the county is negotiating |
| 407 | refuses or delays in negotiating a franchise term of 5 years, or |
| 408 | longer at the county's option, the county may file a civil |
| 409 | action in circuit court for a declaratory judgment, reformation, |
| 410 | or injunctive relief, or any such other relief as the court |
| 411 | finds appropriate, requiring that the franchise term be set at 5 |
| 412 | years or such longer term as prayed by the county. If the county |
| 413 | is successful, the entity with whom the county is negotiating is |
| 414 | liable to the county for all of the county's reasonable |
| 415 | attorney's fees and costs of bringing the action. |
| 416 | (2) A county may not give or grant any franchise governed |
| 417 | by this section without reserving to the county the right to |
| 418 | purchase the street railroad, water works, telephone, cable |
| 419 | television, gas or electric business, or other business at the |
| 420 | expiration of the franchise. The right of reservation includes |
| 421 | all related property used under or in connection with the |
| 422 | franchise or right, or any such part of the property which the |
| 423 | county may desire to purchase. The value of the franchise |
| 424 | property, real and personal, desired by the county shall be |
| 425 | fixed by arbitration as may be provided by law. |
| 426 | (3) A franchise may not be granted which contains or |
| 427 | includes a provision that prohibits a county from competing with |
| 428 | any street railroad, water works, telephone, cable television, |
| 429 | gas or electric business, or other similar business obtaining a |
| 430 | franchise from the county for a period longer than 5 years. |
| 431 | (4) Any franchise or right granted for a period longer |
| 432 | than 30 years, granted without the right to purchase the |
| 433 | franchise as set forth in this section, or including a provision |
| 434 | intended to limit competition with the county for a period |
| 435 | longer than 5 years, is void. Notwithstanding the voiding of any |
| 436 | such franchise, the entity to whom the franchise had been |
| 437 | granted shall continue to be liable to pay any applicable |
| 438 | franchise fees, which would otherwise have been due under the |
| 439 | franchise, to the county for so long as the entity continues to |
| 440 | operate and conduct its business in the county. |
| 441 | Section 11. Section 166.261, Florida Statutes, is created |
| 442 | to read: |
| 443 | 166.261 Credits to municipalities for contributions paid |
| 444 | toward the cost of underground distribution facilities.-- |
| 445 | (1) It is the policy of the state to encourage |
| 446 | municipalities to convert electric distribution, telephone, and |
| 447 | cable television facilities providing service within their |
| 448 | geographic jurisdictions from overhead systems to underground |
| 449 | facilities in order to secure for their residents the benefits |
| 450 | of such underground facilities and systems. It is further the |
| 451 | policy of the state to ensure that, if a municipality pays for |
| 452 | part or all of the cost of converting overhead facilities to |
| 453 | underground facilities, it receive fair credit for such payments |
| 454 | if and when the municipality elects to establish a municipality- |
| 455 | owned electric utility, telephone, or cable television systems. |
| 456 | (2) If a municipality, corporate entity, individual |
| 457 | citizen, or group of citizens, including, without limitation, a |
| 458 | civic association, neighborhood association, homeowners' |
| 459 | association, or similar group, has paid a differential cost |
| 460 | reflecting the difference in cost between the cost of the |
| 461 | underground facilities installed and the cost of equivalent new |
| 462 | overhead facilities for the installation of new underground |
| 463 | facilities, and the municipality subsequently decides to |
| 464 | purchase the public utility's or other provider's facilities as |
| 465 | part of establishing a municipality-owned electric utility, |
| 466 | telephone, or cable television system, whether under eminent |
| 467 | domain or other proceedings, at the municipality's option: |
| 468 | (a) In any proceedings to determine the purchase price for |
| 469 | the facilities being purchased, the municipality shall receive |
| 470 | full credit for such differential payments made, whether by the |
| 471 | municipality, a corporate entity, an individual citizen, or a |
| 472 | group of citizens; or |
| 473 | (b) The municipality shall have the right to purchase the |
| 474 | underground system by paying the public utility or other |
| 475 | provider the difference between the cost of the new underground |
| 476 | system installed and the payment that the municipality or others |
| 477 | made. |
| 478 |
|
| 479 | In order for a municipality and its citizens to receive fair |
| 480 | credit for the value that they contributed to convert overhead |
| 481 | facilities to underground facilities, this section applies to |
| 482 | payments made by the municipality or its citizens before and |
| 483 | after July 1, 2006. This section applies whether the |
| 484 | municipality paid the public utility or other provider to |
| 485 | install the new underground facilities or engaged a private |
| 486 | contractor to install the underground facilities and received a |
| 487 | credit from the public utility or other provider. |
| 488 | (3) If the full cost of installing new underground |
| 489 | facilities is paid by a municipality or its citizens without any |
| 490 | credit from the public utility or other provider for the cost of |
| 491 | an equivalent new overhead facility, the municipality has a |
| 492 | vested fee simple ownership right in the underground facilities |
| 493 | along with any easements and easement rights associated with the |
| 494 | underground facilities. However, the public utility or other |
| 495 | provider retains sufficient rights of access in order to operate |
| 496 | and maintain the underground facilities under the terms and |
| 497 | conditions agreed upon by the municipality and the public |
| 498 | utility or other provider. When considering such terms and |
| 499 | conditions, the Legislature finds and states that a leasehold |
| 500 | interest of the public utility, at an annual lease payment of $1 |
| 501 | per year for all facilities and property, including any |
| 502 | applicable easement rights, located within the municipality's |
| 503 | geographic area is sufficient for this purpose. The Legislature |
| 504 | further finds and declares that, alternatively, the public |
| 505 | utility or other provider has a vested time-limited ownership |
| 506 | interest with the fee simple title remaining vested in the |
| 507 | municipality. This interest may not exceed the duration of any |
| 508 | franchise agreement and is deemed sufficient to satisfy the |
| 509 | public utility's or other provider's need for an ownership |
| 510 | interest to allow it adequate access to the underground |
| 511 | facilities in order to operate and maintain the systems. If the |
| 512 | public utility or other provider and the municipality are unable |
| 513 | to agree on this matter, the municipality, in its sole |
| 514 | discretion, shall determine which of the ownership structures |
| 515 | shall apply. |
| 516 | Section 12. Section 166.262, Florida Statutes, is created |
| 517 | to read: |
| 518 | 166.262 Terms for which a utility franchise may be |
| 519 | granted; conditions.-- |
| 520 | (1)(a) A municipality may not give or grant any franchise |
| 521 | or right to use a street for operating along or across the |
| 522 | street a street railroad, water works, telephone, cable |
| 523 | television, gas or electric business, or other business |
| 524 | requiring the use of mains, pipes, wires, or similar facilities |
| 525 | in any street for a term exceeding 30 years. At the sole option |
| 526 | and discretion of the municipality, a municipality that is |
| 527 | negotiating for a new franchise, or in which a renewal franchise |
| 528 | agreement is being negotiated as the current franchise is about |
| 529 | to expire or has expired, may require that any new franchise |
| 530 | agreement be for a period of 5 years. |
| 531 | (b) If the entity with whom the municipality is |
| 532 | negotiating refuses or delays in negotiating a franchise term of |
| 533 | 5 years, or longer at the municipality's option, the |
| 534 | municipality may file a civil action in circuit court for a |
| 535 | declaratory judgment, reformation, or injunctive relief, or any |
| 536 | such other relief as the court finds appropriate, requiring that |
| 537 | the franchise term be set at 5 years or such longer term as |
| 538 | prayed by the municipality. If the municipality is successful, |
| 539 | the entity with whom the municipality is negotiating is liable |
| 540 | to the municipality for all of the municipality's reasonable |
| 541 | attorney's fees and costs of bringing the action. |
| 542 | (2) A municipality may not give or grant any franchise |
| 543 | governed by this section without reserving to the municipality |
| 544 | the right to purchase the street railroad, water works, |
| 545 | telephone, cable television, gas or electric business, or other |
| 546 | business at the expiration of the franchise. The right of |
| 547 | reservation includes all related property used under or in |
| 548 | connection with the franchise or right, or any such part of the |
| 549 | property which the municipality may desire to purchase. The |
| 550 | value of the franchise property, real and personal, desired by |
| 551 | the municipality shall be fixed by arbitration as may be |
| 552 | provided by law. |
| 553 | (3) A franchise may not be granted which contains or |
| 554 | includes a provision that prohibits a municipality from |
| 555 | competing with any street railroad, water works, telephone, |
| 556 | cable television, gas or electric business, or other similar |
| 557 | business obtaining a franchise from the municipality for a |
| 558 | period longer than 5 years. |
| 559 | (4) Any franchise or right granted for a period longer |
| 560 | than 30 years, granted without the right to purchase the |
| 561 | franchise as set forth in this section, or including a provision |
| 562 | intended to limit competition with the municipality for a period |
| 563 | longer than 5 years, is void. Notwithstanding the voiding of any |
| 564 | such franchise, the entity to whom the franchise had been |
| 565 | granted shall continue to be liable to pay any applicable |
| 566 | franchise fees, which would otherwise have been due under the |
| 567 | franchise, to the municipality for so long as the entity |
| 568 | continues to operate and conduct its business in the |
| 569 | municipality. |
| 570 | Section 13. Section 189.4052, Florida Statutes, is created |
| 571 | to read: |
| 572 | 189.4052 Credits to special districts for contributions |
| 573 | paid toward the cost of underground distribution facilities.-- |
| 574 | (1) It is the policy of the state to encourage special |
| 575 | districts to convert electric distribution, telephone, and cable |
| 576 | television facilities providing service within their geographic |
| 577 | jurisdictions from overhead systems to underground facilities in |
| 578 | order to secure for their residents the benefits of such |
| 579 | underground facilities and systems. It is further the policy of |
| 580 | the state to ensure that, if a special district pays for part or |
| 581 | all of the cost of converting overhead facilities to underground |
| 582 | facilities, the special district receives fair credit for such |
| 583 | payments if and when the special district elects to establish a |
| 584 | special district-owned electric utility, telephone, or cable |
| 585 | television systems. |
| 586 | (2) If a special district has paid a differential cost |
| 587 | reflecting the difference in cost between the cost of the |
| 588 | underground facilities installed and the cost of equivalent new |
| 589 | overhead facilities for the installation of new underground |
| 590 | facilities, and the special district subsequently decides to |
| 591 | purchase the public utility's or other provider's facilities as |
| 592 | part of establishing a special district-owned electric utility, |
| 593 | telephone, or cable television system, whether under eminent |
| 594 | domain or other proceedings, at the special district's option: |
| 595 | (a) In any proceedings to determine the purchase price for |
| 596 | the facilities being purchased, the special district shall |
| 597 | receive full credit for the differential payments made; or |
| 598 | (b) The special district has the right to purchase the |
| 599 | underground system by paying the public utility or other |
| 600 | provider the difference between the cost of the new underground |
| 601 | system installed and the payment that the special district made. |
| 602 |
|
| 603 | In order for a special district to receive fair credit for the |
| 604 | value that it contributed to convert overhead facilities to |
| 605 | underground facilities, this section applies to payments made by |
| 606 | the special district before and after July 1, 2006. This section |
| 607 | applies whether the special district paid the public utility or |
| 608 | other provider to install the new underground facilities or |
| 609 | engaged a private contractor to install the underground |
| 610 | facilities and received a credit from the public utility or |
| 611 | other provider. |
| 612 | (3) If a special district pays the full cost of installing |
| 613 | new underground facilities without any credit from the public |
| 614 | utility or other provider for the cost of an equivalent new |
| 615 | overhead facility, it has a vested fee simple ownership right in |
| 616 | the underground facilities along with any easements and easement |
| 617 | rights associated with the underground facilities. However, the |
| 618 | public utility or other provider retains sufficient rights of |
| 619 | access in order to operate and maintain the underground |
| 620 | facilities under the terms and conditions agreed upon by the |
| 621 | special district and the public utility or other provider. When |
| 622 | considering such terms and conditions, the Legislature finds and |
| 623 | states that a leasehold interest of the public utility, at an |
| 624 | annual lease payment of $1 per year for all facilities and |
| 625 | property, including any applicable easement rights, located |
| 626 | within the special district's geographic area is sufficient for |
| 627 | this purpose. The Legislature further finds and declares that, |
| 628 | alternatively, the public utility or other provider has a vested |
| 629 | time-limited ownership interest with the fee simple title |
| 630 | remaining vested in the special district. This interest may not |
| 631 | exceed the duration of any franchise agreement and is deemed |
| 632 | sufficient to satisfy the public utility's or other provider's |
| 633 | need for an ownership interest to allow it adequate access to |
| 634 | the underground facilities in order to operate and maintain the |
| 635 | systems. If the public utility or other provider and the special |
| 636 | district are unable to agree on this matter, the special |
| 637 | district, in its sole discretion, shall determine which of the |
| 638 | ownership structures shall apply. |
| 639 | Section 14. Section 189.4053, Florida Statutes, is created |
| 640 | to read: |
| 641 | 189.4053 Terms for which a utility franchise may be |
| 642 | granted; conditions.-- |
| 643 | (1)(a) Special districts created under this chapter shall |
| 644 | have, to the extent allowed by law, the power to grant |
| 645 | franchises to entities that wish to operate a street railroad, |
| 646 | water works, telephone, cable television, gas or electric |
| 647 | business, or other business requiring the use of mains, pipes, |
| 648 | wires, or similar facilities in any street in the district. |
| 649 | However, a special district may not give or grant any franchise |
| 650 | or right to use a street for operating along or across the |
| 651 | street a street railroad, water works, telephone, cable |
| 652 | television, gas or electric business, or other business |
| 653 | requiring the use of mains, pipes, wires, or similar facilities |
| 654 | in any street for a term exceeding 30 years. At the sole option |
| 655 | and discretion of the special district, a special district that |
| 656 | is negotiating for a new franchise, or in which a renewal |
| 657 | franchise agreement is being negotiated as the current franchise |
| 658 | is about to expire or has expired, may require that any new |
| 659 | franchise agreement be for a period of 5 years. |
| 660 | (b) If the entity with whom the special district is |
| 661 | negotiating refuses or delays in negotiating a franchise term of |
| 662 | 5 years, or longer at the special district's option, the special |
| 663 | district may file a civil action in circuit court for a |
| 664 | declaratory judgment, reformation, or injunctive relief, or any |
| 665 | such other relief as the court finds appropriate, requiring that |
| 666 | the franchise term be set at 5 years or such longer term as |
| 667 | prayed by the special district. If the special district is |
| 668 | successful, the entity with whom the special district is |
| 669 | negotiating is liable to the special district for all of the |
| 670 | special district's reasonable attorney's fees and costs of |
| 671 | bringing the action. |
| 672 | (2) A special district may not give or grant any franchise |
| 673 | governed by this section without reserving to the special |
| 674 | district the right to purchase the street railroad, water works, |
| 675 | telephone, cable television, gas or electric business, or other |
| 676 | business at the expiration of the franchise. The right of |
| 677 | reservation includes all related property used under or in |
| 678 | connection with the franchise or right, or any such part of the |
| 679 | property which the special district may desire to purchase. The |
| 680 | value of the franchise property, real and personal, desired by |
| 681 | the special district shall be fixed by arbitration as may be |
| 682 | provided by law. |
| 683 | (3) A franchise may not be granted which contains or |
| 684 | includes a provision that prohibits a special district from |
| 685 | competing with any street railroad, water works, telephone, |
| 686 | cable television, gas or electric business, or other similar |
| 687 | business obtaining a franchise from the special district for a |
| 688 | period longer than 5 years. |
| 689 | (4) Any franchise or right granted for a period longer |
| 690 | than 30 years, granted without the right to purchase the |
| 691 | franchise as set forth in this section, or including a provision |
| 692 | intended to limit competition with the special district for a |
| 693 | period longer than 5 years, is void. Notwithstanding the voiding |
| 694 | of any such franchise, the entity to whom the franchise had been |
| 695 | granted shall continue to be liable to pay any applicable |
| 696 | franchise fees, which would otherwise have been due under the |
| 697 | franchise, to the special district for so long as the entity |
| 698 | continues to operate and conduct its business in the special |
| 699 | district. |
| 700 | Section 15. Section 190.018, Florida Statutes, is created |
| 701 | to read: |
| 702 | 190.018 Credits to community development districts for |
| 703 | contributions paid toward the cost of underground distribution |
| 704 | facilities.-- |
| 705 | (1) It is the policy of the state to encourage community |
| 706 | development districts to convert electric distribution, |
| 707 | telephone, and cable television facilities providing service |
| 708 | within their geographic jurisdictions from overhead systems to |
| 709 | underground facilities in order to secure for their residents |
| 710 | the benefits of such underground facilities and systems. It is |
| 711 | further the policy of the state to ensure that, if a community |
| 712 | development district pays for part or all of the cost of |
| 713 | converting overhead facilities to underground facilities, the |
| 714 | community development district receives fair credit for such |
| 715 | payments if and when the community development district elects |
| 716 | to establish a community development district-owned electric |
| 717 | utility, telephone, or cable television system. |
| 718 | (2) If a community development district has paid a |
| 719 | differential cost reflecting the difference in cost between the |
| 720 | cost of the underground facilities installed and the cost of |
| 721 | equivalent new overhead facilities for the installation of new |
| 722 | underground facilities, and the community development district |
| 723 | subsequently decides to purchase the public utility's or other |
| 724 | provider's facilities as part of establishing a community |
| 725 | development district-owned electric utility, telephone, or cable |
| 726 | television system, whether under eminent domain or other |
| 727 | proceedings, at the community development district's option: |
| 728 | (a) In any proceedings to determine the purchase price for |
| 729 | the facilities being purchased, the community development |
| 730 | district shall receive full credit for the differential payments |
| 731 | made; or |
| 732 | (b) The community development district has the right to |
| 733 | purchase the underground system by paying the public utility or |
| 734 | other provider the difference between the cost of the new |
| 735 | underground system installed and the payment that the district |
| 736 | made. |
| 737 |
|
| 738 | In order for a community development district to receive fair |
| 739 | credit for the value that it contributed to convert overhead |
| 740 | facilities to underground facilities, this section applies to |
| 741 | payments made by the community development district before and |
| 742 | after July 1, 2006. This section applies whether the community |
| 743 | development district paid the public utility or other provider |
| 744 | to install the new underground facilities or engaged a private |
| 745 | contractor to install the underground facilities and received a |
| 746 | credit from the public utility or other provider. |
| 747 | (3) If a community development district pays the full cost |
| 748 | of installing new underground facilities without any credit from |
| 749 | the public utility or other provider for the cost of an |
| 750 | equivalent new overhead facility, the community development |
| 751 | district has a vested fee simple ownership right in the |
| 752 | underground facilities along with any easements and easement |
| 753 | rights associated with the underground facilities. However, the |
| 754 | public utility or other provider retains sufficient rights of |
| 755 | access in order to operate and maintain the underground |
| 756 | facilities under the terms and conditions agreed upon by the |
| 757 | community development district and the public utility or other |
| 758 | provider. When considering such terms and conditions, the |
| 759 | Legislature finds and states that a leasehold interest of the |
| 760 | public utility, at an annual lease payment of $1 per year for |
| 761 | all facilities and property, including any applicable easement |
| 762 | rights, located within the community development district's |
| 763 | geographic area is sufficient for this purpose. The Legislature |
| 764 | further finds and declares that, alternatively, the public |
| 765 | utility or other provider has a vested time-limited ownership |
| 766 | interest with the fee simple title remaining vested in the |
| 767 | district. This interest may not exceed the duration of any |
| 768 | franchise agreement and is deemed sufficient to satisfy the |
| 769 | public utility's or other provider's need for an ownership |
| 770 | interest to allow it adequate access to the underground |
| 771 | facilities to operate and maintain the systems. If the public |
| 772 | utility or other provider and the community development district |
| 773 | are unable to agree on this matter, the community development |
| 774 | district, in its sole discretion, shall determine which of the |
| 775 | ownership structures shall apply. |
| 776 | Section 16. Section 190.019, Florida Statutes, is created |
| 777 | to read: |
| 778 | 189.019 Terms for which a utility franchise may be |
| 779 | granted; conditions.-- |
| 780 | (1)(a) A community development district may not give or |
| 781 | grant any franchise or right to use a street for operating along |
| 782 | or across the street a street railroad, water works, telephone, |
| 783 | cable television, gas or electric business, or other business |
| 784 | requiring the use of mains, pipes, wires, or similar facilities |
| 785 | in any street for a term exceeding 30 years. At the sole option |
| 786 | and discretion of the community development district, a |
| 787 | community development district that is negotiating for a new |
| 788 | franchise, or in which a renewal franchise agreement is being |
| 789 | negotiated as the current franchise is about to expire or has |
| 790 | expired, may require that any new franchise agreement be for a |
| 791 | period of 5 years. |
| 792 | (b) If the entity with whom the community development |
| 793 | district is negotiating refuses or delays in negotiating a |
| 794 | franchise term of 5 years, or longer at the community |
| 795 | development district's option, the district may file a civil |
| 796 | action in circuit court for a declaratory judgment, reformation, |
| 797 | or injunctive relief, or any such other relief as the court |
| 798 | finds appropriate, requiring that the franchise term be set at 5 |
| 799 | years or such longer term as prayed by the community development |
| 800 | district. If the district is successful, the entity with whom |
| 801 | the community development district is negotiating is liable to |
| 802 | the community development district for all of the district's |
| 803 | reasonable attorney's fees and costs of bringing the action. |
| 804 | (2) A community development district may not give or grant |
| 805 | any franchise governed by this section without reserving to the |
| 806 | district the right to purchase the street railroad, water works, |
| 807 | telephone, cable television, gas or electric business, or other |
| 808 | business at the expiration of the franchise. The right of |
| 809 | reservation includes all related property used under or in |
| 810 | connection with the franchise or right, or any such part of the |
| 811 | property which the community development district may desire to |
| 812 | purchase. The value of the franchise property, real and |
| 813 | personal, desired by the district shall be fixed by arbitration |
| 814 | as may be provided by law. |
| 815 | (3) A franchise may not be granted which contains or |
| 816 | includes a provision that prohibits a community development |
| 817 | district from competing with any street railroad, water works, |
| 818 | telephone, cable television, gas or electric business, or other |
| 819 | similar business obtaining a franchise from the district for a |
| 820 | period longer than 5 years. |
| 821 | (4) Any franchise or right granted for a period longer |
| 822 | than 30 years, granted without the right to purchase the |
| 823 | franchise as set forth in this section, or including a provision |
| 824 | intended to limit competition with the community development |
| 825 | district for a period longer than 5 years, is void. |
| 826 | Notwithstanding the voiding of any such franchise, the entity to |
| 827 | whom the franchise had been granted shall continue to be liable |
| 828 | to pay any applicable franchise fees, which would otherwise have |
| 829 | been due under the franchise, to the community development |
| 830 | district for so long as the entity continues to operate and |
| 831 | conduct its business in the community development district. |
| 832 | Section 17. Subsection (4) is added to section 364.03, |
| 833 | Florida Statutes, to read: |
| 834 | 364.03 Rates to be reasonable; performance of service; |
| 835 | maintenance of telecommunications facilities.-- |
| 836 | (4) The reliability of telecommunications service is |
| 837 | critical to the public health, safety, and welfare, and |
| 838 | minimizing the severity, extent, and duration of outages of |
| 839 | telecommunications service is likewise critical to the public |
| 840 | health, safety, and welfare. Accordingly, the Legislature |
| 841 | directs the commission and the entities that provide such |
| 842 | service in this state to consistently and continuously seek, |
| 843 | promote, and encourage all reasonable means of enhancing and |
| 844 | maximizing the reliability of the telecommunications system. |
| 845 | Further, the Legislature directs the commission and all such |
| 846 | entities in this state to aggressively promote and encourage the |
| 847 | installation of underground facilities, where applicable and to |
| 848 | the maximum extent feasible, and to aggressively promote and |
| 849 | encourage the timely and orderly conversion of existing overhead |
| 850 | facilities to underground facilities. Consistent with the |
| 851 | Florida Reliable Electricity Enhancement Act, ss. 366.201- |
| 852 | 366.208, effective January 1, 2007, it is presumed that |
| 853 | underground service constitutes the standard for new |
| 854 | telecommunication service in this state and that underground |
| 855 | service shall constitute modern, adequate, sufficient, and |
| 856 | efficient service within the meaning of this section. The |
| 857 | commission shall adopt rules to the extent of its jurisdiction |
| 858 | encouraging and promoting, to the maximum extent feasible, the |
| 859 | conversion of existing overhead facilities to underground |
| 860 | facilities on a priority basis, in coordination with any |
| 861 | conversion of electric facilities to underground service, giving |
| 862 | due consideration to the overall cost of vehicular accidents |
| 863 | involving poles and other overhead facilities, as well as to |
| 864 | corresponding facilities that provide underground service, the |
| 865 | costs associated with rights-of-way and easements, the total |
| 866 | operating and maintenance costs, including, without limitation, |
| 867 | costs of tree-trimming for overhead facilities, the total costs |
| 868 | incurred and losses sustained by consumers as a result of |
| 869 | outages due to storm damage, and the costs of associated |
| 870 | insurance, attorney's fees, and legal settlement and costs. |
| 871 | Section 18. Paragraph (e) of subsection (2) of section |
| 872 | 366.04, Florida Statutes, is amended to read: |
| 873 | 366.04 Jurisdiction of commission.-- |
| 874 | (2) In the exercise of its jurisdiction, the commission |
| 875 | shall have power over electric utilities for the following |
| 876 | purposes: |
| 877 | (e) To resolve, upon petition of a utility or on its own |
| 878 | motion, any territorial dispute involving service areas between |
| 879 | and among rural electric cooperatives, municipal electric |
| 880 | utilities, and other electric utilities under its jurisdiction. |
| 881 | In resolving territorial disputes, the commission may consider, |
| 882 | but not be limited to consideration of, the ability of the |
| 883 | utilities to expand services within their own capabilities and |
| 884 | the nature of the area involved, including population, the |
| 885 | degree of urbanization of the area, its proximity to other urban |
| 886 | areas, and the present and reasonably foreseeable future |
| 887 | requirements of the area for other utility services. The |
| 888 | Legislature finds and declares that the installation of |
| 889 | underground electric distribution facilities to replace existing |
| 890 | overhead facilities is in the public interest and that such |
| 891 | installation is not a duplication of existing overhead |
| 892 | facilities. Any governmental entity that installs underground |
| 893 | electric distribution facilities to provide service within its |
| 894 | geographic jurisdiction, and subsequently, without violating any |
| 895 | then-effective franchise agreement, establishes a governmentally |
| 896 | owned electric utility system and begins operating such system, |
| 897 | is not subject to the jurisdiction of the commission over |
| 898 | territorial disputes. |
| 899 | Section 19. This act shall take effect July 1, 2006. |