Senate Bill sb0998c3

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    Florida Senate - 2007              CS for CS for CS for SB 998

    By the Committees on General Government Appropriations;
    Community Affairs; Communications and Public Utilities; and
    Senator Bennett



    601-2642-07

  1                      A bill to be entitled

  2         An act relating to communications; providing a

  3         short title; amending s. 202.11, F.S.;

  4         providing a definition; amending s. 202.24,

  5         F.S.; prohibiting counties and municipalities

  6         from negotiating terms and conditions relating

  7         to cable and video services; deleting

  8         authorization to negotiate; revising

  9         application to existing ordinances or franchise

10         agreements; amending s. 337.401, F.S.; deleting

11         authorization for counties and municipalities

12         to award cable service franchises and a

13         restriction that cable service companies not

14         operate without such a franchise; amending s.

15         337.4061, F.S.; revising definitions; creating

16         ss. 610.102, 610.103, 610.104, 610.105,

17         610.106, 610.107, 610.108, 610.109, 610.112,

18         610.113, 610.114, 610.115, 610.116, 610.117,

19         and 610.118, F.S.; designating the Department

20         of State as the authorizing authority;

21         providing definitions; requiring state

22         authorization to provide cable and video

23         services; providing requirements and

24         procedures; providing for fees; providing

25         duties and responsibilities of the Department

26         of State; providing application procedures and

27         requirements; providing for issuing

28         certificates of franchise authority; providing

29         eligibility requirements and criteria for a

30         certificate; providing for amending a

31         certificate; providing for transferability of

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 1         certificates; providing for termination of

 2         certificates under certain circumstances;

 3         providing for challenging a department

 4         rejection of an application; providing that the

 5         department shall function in a ministerial

 6         capacity for certain purposes; providing for an

 7         application form; providing for an application

 8         fee; requiring certain information updates;

 9         providing for a processing fee; providing for

10         cancellation upon notice that information

11         updates and processing fees are not received;

12         providing for an opportunity to cure; providing

13         for transfer of such fees to the Department of

14         Agriculture and Consumer Services; requiring

15         the department to maintain a separate account

16         for cable franchise revenues; providing for

17         fees to the Department of State for certain

18         activities; prohibiting the department from

19         imposing additional taxes, fees, or charges on

20         a cable or video service provider to issue a

21         certificate; prohibiting imposing buildout,

22         construction, and deployment requirements on a

23         certificateholder; imposing certain customer

24         service requirements on cable service

25         providers; requiring the Department of

26         Agriculture and Consumer Services to receive

27         customer service complaints; requiring

28         provision of public, educational, and

29         governmental access channels or capacity

30         equivalent; providing criteria, requirements,

31         and procedures; providing responsibilities of

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 1         municipalities and counties relating to such

 2         channels; providing for enforcement; providing

 3         for future repeal; prohibiting counties and

 4         municipalities from imposing additional

 5         requirements on certificateholders; prohibiting

 6         discrimination among cable and video service

 7         subscribers; providing for enforcement;

 8         providing for a period of time to cure certain

 9         noncompliance; providing for the use of

10         alternative technology; clarifying local

11         government and department authority over

12         communications services; providing requirements

13         for cable service providers under certain court

14         orders; providing for payment by

15         certificateholders of certain amounts to

16         municipalities and counties under certain

17         circumstances; providing procedures for payment

18         of such amounts; providing service requirements

19         for certificateholders; authorizing separate

20         statement of certain fees on a customer bill;

21         preserving certain rights of

22         certificateholders; authorizing

23         certificateholders to intervene in certain

24         court actions; requiring the Office of Program

25         Policy Analysis and Government Accountability

26         to report to the Legislature on the status of

27         competition in the cable and video service

28         industry; providing report requirements;

29         requiring the Department of Agriculture and

30         Consumer Services to make recommendations to

31         the Legislature; providing duties of the

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 1         Department of State; providing severability;

 2         amending ss. 350.81 and 364.0361, F.S.;

 3         conforming cross-references; amending s.

 4         364.051, F.S.; deleting provisions under which

 5         certain telecommunications companies may elect

 6         alternative regulation; amending s. 364.10,

 7         F.S.; requiring each state agency that

 8         determines that a person is eligible for

 9         Lifeline service to act immediately to ensure

10         that the person is enrolled in the Lifeline

11         service program; requiring a state agency to

12         include an option for not subscribing to the

13         program; requiring that the Public Service

14         Commission and the Department of Children and

15         Family Services adopt rules by a specified

16         date; requiring the Public Service Commission,

17         the Department of Children and Family Services,

18         and the Office of Public Counsel to enter into

19         a memorandum of understanding regarding their

20         respective duties under the Lifeline service

21         program; amending s. 364.163, F.S.; providing

22         for a cap on certain switched network access

23         service rates; deleting a time period in which

24         intrastate access rates are capped; prohibiting

25         interexchange telecommunications companies from

26         instituting any intrastate connection fee;

27         deleting provisions for regulatory oversight of

28         intrastate access rates; amending s. 364.385,

29         F.S.; providing for continuing effect of

30         certain rates and charges approved by the

31         Public Service Commission; providing for an

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 1         exception; repealing s. 166.046, F.S., relating

 2         to definitions and minimum standards for cable

 3         television franchises imposed upon counties and

 4         municipalities; repealing s. 364.164, F.S,

 5         relating to competitive market enhancement;

 6         providing an effective date.

 7  

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

 9  

10         Section 1.  This act may be cited as the "Consumer

11  Choice Act."

12         Section 2.  Subsection (24) is added to section 202.11,

13  Florida Statutes, to read:

14         202.11  Definitions.--As used in this chapter:

15         (24)  "Video service" has the same meaning as that

16  provided in s. 610.103.

17         Section 3.  Paragraphs (a) and (c) of subsection (2) of

18  section 202.24, Florida Statutes, are amended to read:

19         202.24  Limitations on local taxes and fees imposed on

20  dealers of communications services.--

21         (2)(a)  Except as provided in paragraph (c), each

22  public body is prohibited from:

23         1.  Levying on or collecting from dealers or purchasers

24  of communications services any tax, charge, fee, or other

25  imposition on or with respect to the provision or purchase of

26  communications services.

27         2.  Requiring any dealer of communications services to

28  enter into or extend the term of a franchise or other

29  agreement that requires the payment of a tax, charge, fee, or

30  other imposition.

31  

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 1         3.  Adopting or enforcing any provision of any

 2  ordinance or agreement to the extent that such provision

 3  obligates a dealer of communications services to charge,

 4  collect, or pay to the public body a tax, charge, fee, or

 5  other imposition.

 6  

 7  Municipalities and counties may not Each municipality and

 8  county retains authority to negotiate all terms and conditions

 9  of a cable service franchise allowed by federal and state law

10  except those terms and conditions related to franchise fees or

11  and the definition of gross revenues or other definitions or

12  methodologies related to the payment or assessment of

13  franchise fees on providers of cable or video services.

14         (c)  This subsection does not apply to:

15         1.  Local communications services taxes levied under

16  this chapter.

17         2.  Ad valorem taxes levied pursuant to chapter 200.

18         3.  Occupational license taxes levied under chapter

19  205.

20         4.  "911" service charges levied under chapter 365.

21         5.  Amounts charged for the rental or other use of

22  property owned by a public body which is not in the public

23  rights-of-way to a dealer of communications services for any

24  purpose, including, but not limited to, the placement or

25  attachment of equipment used in the provision of

26  communications services.

27         6.  Permit fees of general applicability which are not

28  related to placing or maintaining facilities in or on public

29  roads or rights-of-way.

30  

31  

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 1         7.  Permit fees related to placing or maintaining

 2  facilities in or on public roads or rights-of-way pursuant to

 3  s. 337.401.

 4         8.  Any in-kind requirements, institutional networks,

 5  or contributions for, or in support of, the use or

 6  construction of public, educational, or governmental access

 7  facilities allowed under federal law and imposed on providers

 8  of cable or video service pursuant to any existing ordinance

 9  or an existing franchise agreement granted by each

10  municipality or county, under which ordinance or franchise

11  agreement service is provided prior to July 1, 2007, or as

12  permitted under chapter 610. Nothing in this subparagraph

13  shall prohibit the ability of providers of cable or video

14  service to recover such expenses as allowed under federal law.

15         9.  Special assessments and impact fees.

16         10.  Pole attachment fees that are charged by a local

17  government for attachments to utility poles owned by the local

18  government.

19         11.  Utility service fees or other similar user fees

20  for utility services.

21         12.  Any other generally applicable tax, fee, charge,

22  or imposition authorized by general law on July 1, 2000, which

23  is not specifically prohibited by this subsection or included

24  as a replaced revenue source in s. 202.20.

25         Section 4.  Paragraphs (a), (b), (e), and (f) of

26  subsection (3) of section 337.401, Florida Statutes, are

27  amended to read:

28         337.401  Use of right-of-way for utilities subject to

29  regulation; permit; fees.--

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

31  applicable to providers of communications services, including,

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 1  but not limited to, the circumstances described in paragraph

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

 3  nondiscriminatory treatment of providers of telecommunications

 4  services, and because of the desire to promote competition

 5  among providers of communications services, it is the intent

 6  of the Legislature that municipalities and counties treat

 7  providers of communications services in a nondiscriminatory

 8  and competitively neutral manner when imposing rules or

 9  regulations governing the placement or maintenance of

10  communications facilities in the public roads or

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

12  or county relating to providers of communications services

13  placing or maintaining communications facilities in its roads

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

15  of communications services and, notwithstanding any other law,

16  may not require a provider of communications services, except

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

18  enter into an individual license, franchise, or other

19  agreement with the municipality or county as a condition of

20  placing or maintaining communications facilities in its roads

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

22  regulations that a municipality or county may adopt relating

23  to the placement or maintenance of communications facilities

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

25  municipality or county may require a provider of

26  communications services that places or seeks to place

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

28  municipality or county and to provide the name of the

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

30  contact person for the registrant; the number of the

31  registrant's current certificate of authorization issued by

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 1  the Florida Public Service Commission, or the Federal

 2  Communications Commission, or the Department of State; and

 3  proof of insurance or self-insuring status adequate to defend

 4  and cover claims.

 5         2.  Notwithstanding the provisions of subparagraph 1.,

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

 7  award one or more franchises within its jurisdiction for the

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

 9  shall not provide cable service without such franchise. Each

10  municipality and county retains authority to negotiate all

11  terms and conditions of a cable service franchise allowed by

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

13  related to franchise fees and the definition of gross revenues

14  or other definitions or methodologies related to the payment

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

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

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

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

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

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

21  governmental access facilities to the extent permitted by

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

23  right to recover any such expenses associated with such

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

25         (b)  Registration described in paragraph subparagraph

26  (a)1. does not establish a right to place or maintain, or

27  priority for the placement or maintenance of, a communications

28  facility in roads or rights-of-way of a municipality or

29  county. Each municipality and county retains the authority to

30  regulate and manage municipal and county roads or

31  rights-of-way in exercising its police power. Any rules or

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 1  regulations adopted by a municipality or county which govern

 2  the occupation of its roads or rights-of-way by providers of

 3  communications services must be related to the placement or

 4  maintenance of facilities in such roads or rights-of-way, must

 5  be reasonable and nondiscriminatory, and may include only

 6  those matters necessary to manage the roads or rights-of-way

 7  of the municipality or county.

 8         (e)  The authority of municipalities and counties to

 9  require franchise fees from providers of communications

10  services, with respect to the provision of communications

11  services, is specifically preempted by the state, except as

12  otherwise provided in subparagraph (a)2., because of unique

13  circumstances applicable to providers of communications

14  services when compared to other utilities occupying municipal

15  or county roads or rights-of-way. Providers of communications

16  services may provide similar services in a manner that

17  requires the placement of facilities in municipal or county

18  roads or rights-of-way or in a manner that does not require

19  the placement of facilities in such roads or rights-of-way.

20  Although similar communications services may be provided by

21  different means, the state desires to treat providers of

22  communications services in a nondiscriminatory manner and to

23  have the taxes, franchise fees, and other fees paid by

24  providers of communications services be competitively neutral.

25  Municipalities and counties retain all existing authority, if

26  any, to collect franchise fees from users or occupants of

27  municipal or county roads or rights-of-way other than

28  providers of communications services, and the provisions of

29  this subsection shall have no effect upon this authority. The

30  provisions of this subsection do not restrict the authority,

31  if any, of municipalities or counties or other governmental

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 1  entities to receive reasonable rental fees based on fair

 2  market value for the use of public lands and buildings on

 3  property outside the public roads or rights-of-way for the

 4  placement of communications antennas and towers.

 5         (f)  Except as expressly allowed or authorized by

 6  general law and except for the rights-of-way permit fees

 7  subject to paragraph (c), a municipality or county may not

 8  levy on a provider of communications services a tax, fee, or

 9  other charge or imposition for operating as a provider of

10  communications services within the jurisdiction of the

11  municipality or county which is in any way related to using

12  its roads or rights-of-way. A municipality or county may not

13  require or solicit in-kind compensation, except as otherwise

14  provided in s. 202.24(2)(c)8. or s. 610.109 subparagraph (a)2.

15  Nothing in this paragraph shall impair any ordinance or

16  agreement in effect on May 22, 1998, or any voluntary

17  agreement entered into subsequent to that date, which provides

18  for or allows in-kind compensation by a telecommunications

19  company.

20         Section 5.  Section 337.4061, Florida Statutes, is

21  amended to read:

22         337.4061  Definitions; unlawful use of state-maintained

23  road right-of-way by nonfranchised cable and video television

24  services.--

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

26         (a)  "Cable service" means:

27         1.  The one-way transmission to subscribers of video

28  programming or any other programming service; and

29         2.  Subscriber interaction, if any, which is required

30  for the selection or use of such video programming or other

31  programming service.

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 1         (b)  "Cable system" means a facility, consisting of a

 2  set of closed transmission paths and associated signal

 3  generation, reception, and control equipment that is designed

 4  to provide cable service which includes video programming and

 5  which is provided to multiple subscribers within a community,

 6  but such term does not include:

 7         1.  A facility that serves only to retransmit the

 8  television signals of one or more television broadcast

 9  stations;

10         2.  A facility that serves only subscribers in one or

11  more multiple-unit dwellings under common ownership, control,

12  or management, unless such facility or facilities use any

13  public right-of-way;

14         3.  A facility that serves subscribers without using

15  any public right-of-way.

16         4.3.  A facility of a common carrier that is subject,

17  in whole or in part, to the provisions of Title II of the

18  federal Communications Act of 1934, except that such facility

19  shall be considered a cable system other than for purposes of

20  47 U.S.C. Section 541(c) to the extent such facility is used

21  in the transmission of video programming directly to

22  subscribers, unless the extent of such use is solely to

23  provide interactive on-demand services; or

24         5.4.  Any facilities of any electric utility used

25  solely for operating its electric utility systems; or.

26         6.  An open video system that complies with 47 U.S.C.

27  Section 573.

28         (c)  "Franchise" means an initial authorization or

29  renewal thereof issued by a franchising authority, whether

30  such authorization is designated as a franchise, permit,

31  license, resolution, contract, certificate, agreement, or

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 1  otherwise, which authorizes the construction or operation of a

 2  cable system or video service provider network facilities.

 3         (d)  "Franchising authority" means any governmental

 4  entity empowered by federal, state, or local law to grant a

 5  franchise.

 6         (e)  "Person" means an individual, partnership,

 7  association, joint stock company, trust, corporation, or

 8  governmental entity.

 9         (f)  "Video programming" means programming provided by

10  or generally considered comparable to programming provided by

11  a television broadcast station or cable system.

12         (g)  "Video service" has the same meaning as that

13  provided in s. 610.103.

14         (2)  It is unlawful to use the right-of-way of any

15  state-maintained road, including appendages thereto, and also

16  including, but not limited to, rest areas, wayside parks,

17  boat-launching ramps, weigh stations, and scenic easements, to

18  provide for cable or video service over facilities purposes

19  within a geographic area subject to a valid existing franchise

20  for cable or video service, unless the cable or video service

21  provider system using such right-of-way holds a franchise from

22  a franchising authority the municipality or county for the

23  area in which the right-of-way is located.

24         (3)  A violation of this section shall be deemed a

25  violation of s. 337.406.

26         Section 6.  Sections 610.102, 610.103, 610.104,

27  610.105, 610.106, 610.107, 610.108, 610.109, 610.112, 610.113,

28  610.114, 610.115, 610.116, 610.117, and 620.118, Florida

29  Statutes, are created to read:

30         610.102  Department of State authority to issue

31  statewide cable and video franchise.--The department shall be

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 1  designated as the franchising authority for a state-issued

 2  franchise for the provision of cable or video service. A

 3  municipality or county may not grant a new franchise for the

 4  provision of cable or video service within its jurisdiction.

 5         610.103  Definitions.--As used in ss. 610.102-610.117:

 6         (1)  "Cable service" means:

 7         (a)  The one-way transmission to subscribers of video

 8  programming or any other programming service.

 9         (b)  Subscriber interaction, if any, that is required

10  for the selection or use of such video programming or other

11  programming service.

12         (2)  "Cable service provider" means a person that

13  provides cable service over a cable system.

14         (3)  "Cable system" means a facility consisting of a

15  set of closed transmission paths and associated signal

16  generation, reception, and control equipment that is designed

17  to provide cable service that includes video programming and

18  that is provided to multiple subscribers within a community,

19  but such term does not include:

20         (a)  A facility that serves only to retransmit the

21  television signals of one or more television broadcast

22  stations;

23         (b)  A facility that serves only subscribers in one or

24  more multiple-unit dwellings under common ownership, control,

25  or management, unless such facility or facilities use any

26  public right-of-way;

27         (c)  A facility that serves subscribers without using

28  any public right-of-way;

29         (d)  A facility of a common carrier that is subject, in

30  whole or in part, to the provisions of Title II of the federal

31  Communications Act of 1934 except that such facility shall be

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 1  considered a cable system other than for purposes of 47 U.S.C.

 2  Section 541(c) to the extent such facility is used in the

 3  transmission of video programming directly to subscribers,

 4  unless the extent of such use is solely to provide interactive

 5  on-demand services;

 6         (e)  Any facilities of any electric utility used solely

 7  for operating its electric utility systems; or

 8         (f)  An open video system that complies with 47 U.S.C.

 9  Section 573.

10         (4)  "Certificateholder" means a cable or video service

11  provider that has been issued and holds a certificate of

12  franchise authority from the department.

13         (5)  "Department" means the Department of State.

14         (6)  "Franchise" means an initial authorization or

15  renewal of an authorization, regardless of whether the

16  authorization is designated as a franchise, permit, license,

17  resolution, contract, certificate, agreement, or otherwise, to

18  construct and operate a cable system or video service provider

19  network facilities in the public right-of-way.

20         (7)  "Franchise authority" means any governmental

21  entity empowered by federal, state, or local law to grant a

22  franchise.

23         (8)  "Incumbent cable service provider" means the cable

24  service provider serving the largest number of cable

25  subscribers in a particular municipal or county franchise area

26  on July 1, 2007.

27         (9)  "Video programming" means programming provided by,

28  or generally considered comparable to programming provided by,

29  a television broadcast station as set forth in 47 U.S.C. s.

30  522(20).

31  

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 1         (10)  "Video service" means video programming services,

 2  including cable services, provided through wireline facilities

 3  located at least in part in the public rights-of-way without

 4  regard to delivery technology, including Internet protocol

 5  technology. This definition does not include any video

 6  programming provided by a commercial mobile service provider

 7  as defined in 47 U.S.C. s. 332(d), video programming provided

 8  as part of, and via a cable service that enables end users to

 9  access content, information, electronic mail, or other

10  services offered over the public Internet.

11         (11)  "Video service provider" means an entity

12  providing video service.

13         610.104  State authorization to provide cable or video

14  service.--

15         (1)  An entity or person seeking to provide cable or

16  video service in this state after July 1, 2007, shall file an

17  application for a state-issued certificate of franchise

18  authority with the department as required by this section. An

19  entity or person providing cable or video service under an

20  unexpired franchise agreement with a municipality or county as

21  of July 1, 2007, is not subject to this subsection with

22  respect to providing service in such municipality or county

23  until the franchise agreement expires or as provided by s.

24  610.105. An entity or person providing cable or video service

25  may seek authorization from the department to provide service

26  in areas where the entity or person currently does not have an

27  existing franchise agreement as of July 1, 2007.

28         (2)  An applicant for a state-issued certificate of

29  franchise authority to provide cable or video service shall

30  submit to the Department of State an application that

31  contains:

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 1         (a)  The official name of the cable or video service

 2  provider.

 3         (b)  The street address of the principal place of

 4  business of the cable or video service provider.

 5         (c)  The federal employer identification number or the

 6  Department of State's document number.

 7         (d)  The name, address, and telephone number of an

 8  officer, partner, owner, member, or manager as a contact

 9  person for the cable or video service provider to whom

10  questions or concerns may be addressed.

11         (e)  A duly executed affidavit signed by an officer,

12  partner, owner, or managing member affirming and containing:

13         1.  That the applicant is fully qualified under the

14  provisions of this chapter to file an application and

15  affidavit for a certificate of franchise authority.

16         2.  That the applicant has filed or will timely file

17  with the Federal Communications Commission all forms required

18  by that agency in advance of offering cable or video service

19  in this state.

20         3.  That the applicant agrees to comply with all

21  applicable federal and state laws and regulations.

22         4.  That the applicant agrees to comply with all state

23  laws and rules and municipal and county ordinances and

24  regulations regarding the placement and maintenance of

25  communications facilities in the public rights-of-way in

26  accordance with s. 337.401.

27         5.  A description of the service area for which the

28  applicant seeks a certificate of franchise authority, provided

29  on a municipal or countywide basis. The description may be

30  provided in a manner that does not disclose competitively

31  sensitive information. For existing incumbent cable or video

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 1  service providers that have existing communications

 2  facilities, the service area shall be coextensive with the

 3  provider's existing network boundaries within the political

 4  boundaries of the local jurisdiction where video services are

 5  provided. For applicants using telecommunications facilities

 6  to provide video services, the service area shall be

 7  coextensive with all of the provider's wire centers or

 8  exchanges within the political boundaries of the local

 9  jurisdiction where video services are provided.

10         6.  The location of the applicant's principal place of

11  business, the names of the applicant's principal executive

12  officers, and a physical address sufficient for the purposes

13  of chapter 48.

14         7.  That the applicant will file with the department a

15  notice of commencement of service within 5 business days after

16  first providing service in each area described in subparagraph

17  5.

18         8.  A statement affirming that the applicant will

19  notify the department of any change of address or contact

20  person.

21         9.  The applicant's system must comply with the rules

22  and regulations of the federal Emergency Alert System. The

23  applicant shall install and maintain equipment for use in

24  transmitting emergency alert notifications and emergency alert

25  terminations in local and statewide situations designated to

26  be an emergency in accordance with rules of the Federal

27  Communications Commission.

28         (3)  Before the 10th business day after the department

29  receives the application, the department shall notify the

30  applicant whether the application and affidavit described in

31  subsection (2) are complete. If the department rejects the

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 1  application and affidavit, the department shall specify with

 2  particularity the reasons for the rejection and permit the

 3  applicant to amend the application or affidavit to cure any

 4  deficiency. The department shall act upon the amended

 5  application or affidavit within 10 business days after the

 6  department's receipt of the amended application or affidavit.

 7         (4)  The department shall issue a certificate of

 8  franchise authority to the applicant before the 15th business

 9  day after receipt of an accepted application. The certificate

10  of franchise authority issued by the department shall contain:

11         (a)  The name of the certificateholder and its

12  identification number.

13         (b)  A grant of authority to provide cable or video

14  service as requested in the application.

15         (c)  A statement that the grant of authority is subject

16  to lawful operation of the cable or video service by the

17  applicant or its successor in interest.

18         (d)  A statement that describes the service area for

19  which this certificate of authority applies.

20         (e)  A statement that includes the effective date of

21  the commencement of this authority.

22         (5)  If the department fails to act on the accepted

23  application within 30 business days after receiving the

24  accepted application, the application shall be deemed approved

25  by the department without further action.

26         (6)  A certificateholder that seeks to include

27  additional service areas in its current certificate shall file

28  an amendment to the certificate with the department. Such

29  amendment shall specify the name and address of the

30  certificateholder, the new service area or areas to be served,

31  and the effective date of commencement of operations in the

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 1  new service area or areas. Such amendment shall be filed with

 2  the department within 5 business days after first providing

 3  service in each such additional area.

 4         (7)  The certificate of franchise authority issued by

 5  the department is fully transferable to any successor in

 6  interest to the applicant to which the certificate is

 7  initially granted. A notice of transfer shall be filed with

 8  the department and the relevant municipality or county within

 9  14 business days following the completion of such transfer.

10         (8)  The certificate of franchise authority issued by

11  the department may be terminated by the cable or video service

12  provider by submitting notice to the department.

13         (9)  An applicant may challenge a rejection of an

14  application by the department in a court of competent

15  jurisdiction through a petition for mandamus.

16         (10)  In executing the provisions of this section, the

17  department shall function in a ministerial capacity accepting

18  information contained in the application and affidavit at face

19  value. The applicant shall ensure continued compliance with

20  all applicable business formation, registration, and taxation

21  provisions of law.

22         (11)  The application shall be accompanied by a

23  one-time fee of $10,000. A parent company may file a single

24  application covering itself and all of its subsidiaries and

25  affiliates intending to provide cable or video service in the

26  service areas throughout the state as described in paragraph

27  (2)(d), but the entity actually providing such service in a

28  given area shall otherwise be considered the certificateholder

29  under this act.

30         (12)  Beginning 5 years after approval of the

31  certificateholder's initial certificate of franchise issued by

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 1  the department, and every 5 years thereafter, the

 2  certificateholder shall update the information contained in

 3  the original application for a certificate of franchise. At

 4  the time of filing the information update, the

 5  certificateholder shall pay a processing fee of $1,000. Any

 6  certificateholder that fails to file the updated information

 7  and pay the processing fee on the 5-year anniversary dates

 8  shall be subject to cancellation of its state-issued

 9  certificate of franchise authority if, upon notice given to

10  the certificateholder at its last address on file with the

11  department, the certificateholder fails to file the updated

12  information and pay the processing fee within 30 days after

13  the date notice was mailed. The application and processing

14  fees imposed in this section shall be paid to the Department

15  of State for deposit into the Operating Trust Fund for

16  immediate transfer by the Chief Financial Officer to the

17  General Inspection Trust Fund of the Department of Agriculture

18  and Consumer Services. The Department of Agriculture and

19  Consumer Services shall maintain a separate account within the

20  General Inspection Trust Fund to distinguish cable franchise

21  revenues from all other funds. The application, any amendments

22  to the certificate, or information updates must be accompanied

23  by a fee to the Department of State equal to that for filing

24  articles of incorporation pursuant to s. 607.0122(1).

25         610.105  Eligibility for state-issued franchise.--The

26  holder of a current municipal or county franchise under s.

27  166.046 may elect to terminate the existing franchise and,

28  with the written agreement of the relevant municipality or

29  county, seek a state-issued certificate of franchise authority

30  as provided under s. 610.104.

31  

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 1         610.106  Franchise fees prohibited.--Except as

 2  otherwise provided in this chapter, the department may not

 3  impose any taxes, fees, charges, or other impositions on a

 4  cable or video service provider as a condition for the

 5  issuance of a state-issued certificate of franchise authority.

 6         610.107  Buildout.--No franchising authority, state

 7  agency, or political subdivision may impose any buildout,

 8  system construction, or service deployment requirements on a

 9  certificateholder.

10         610.108  Customer service standards.--

11         (1)  All cable or video service providers shall comply

12  with customer service requirements in 47 C.F.R. s. 76.309(c).

13         (2)  Any municipality or county that as of January 1,

14  2007, has an office or department dedicated to responding to

15  cable or video service customer complaints may continue to

16  respond to such complaints until July 1, 2009. Beginning on

17  July 1, 2009, the Department of Agriculture and Consumer

18  Services shall have the sole authority to respond to all cable

19  or video service customer complaints. This provision shall not

20  be construed to permit the municipality, county, or department

21  to impose customer service standards inconsistent with the

22  requirements in 47 C.F.R. s. 76.309(c).

23         (3)  The Department of Agriculture and Consumer

24  Services shall receive service quality complaints from

25  customers of a cable or video service provider and shall

26  address such complaints in an expeditious manner by assisting

27  in the resolution of such complaint between the complainant

28  and the cable or video service provider. The Department of

29  Agriculture and Consumer Services may adopt any procedural

30  rules pursuant to ss. 120.536(1) and 120.54 necessary to

31  administer this section, but shall not have any authority to

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 1  impose any customer service requirements inconsistent with

 2  those contained in 47 C.F.R. s. 76.309(c).

 3         610.109  Public, educational, and governmental access

 4  channels.--

 5         (1)  Notwithstanding s. 610.105, the terms, conditions,

 6  and remaining lump-sum or recurring subscriber funding

 7  obligations relating to educational and governmental access

 8  channels in franchise agreements in effect as of July 1, 2007,

 9  shall remain in effect until December 31, 2011.

10         (2)  If a municipality or county does not have

11  educational or governmental access channels activated under a

12  cable service provider franchise agreement as of July 1, 2007,

13  not later than 6 months following a request by the

14  municipality or county within whose jurisdiction a

15  certificateholder is providing cable or video service, the

16  cable or video service provider shall furnish up to two

17  educational and governmental channels or capacity equivalent.

18         (3)  Within 6 months after a request, a public access

19  channel or capacity equivalent may be furnished after a

20  polling of all subscribers of the cable or video service in

21  their service area. The usage of one public access channel or

22  capacity equivalent shall be determined by a majority of all

23  the provider's subscribers in the jurisdiction. The video or

24  cable service subscribers must be provided with clear, plain

25  language informing them that public access is unfiltered

26  programming and may contain adult content.

27         (4)  The operation of any educational or governmental

28  access channel or capacity equivalent provided under this

29  section shall be the responsibility of the municipality or

30  county receiving the benefit of such channel or capacity

31  equivalent, and a certificateholder bears only the

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 1  responsibility for the transmission of such channel content. A

 2  certificateholder shall be responsible for providing the

 3  connectivity to each educational or governmental access

 4  channel distribution point up to the first 500 feet from the

 5  certificateholder's activated cable or video transmission

 6  system.

 7         (5)  Where technically feasible, a certificateholder

 8  and an incumbent cable service provider shall use reasonable

 9  efforts to interconnect their networks for the purpose of

10  providing public, educational, and governmental programming.

11  Interconnection may be accomplished by direct cable, microwave

12  link, satellite, or other reasonable method of connection.

13  Certificateholders and incumbent cable service providers shall

14  negotiate in good faith and incumbent cable service providers

15  may not withhold interconnection of public, educational, and

16  governmental channels.

17         (6)  A certificateholder is not required to

18  interconnect for, or otherwise to transmit, public,

19  educational, and governmental content that is branded with the

20  logo, name, or other identifying marks of another cable or

21  video service provider, and a municipality or county may

22  require a cable or video service provider to remove its logo,

23  name, or other identifying marks from public, educational, and

24  governmental content that is to be made available to another

25  provider. This subsection does not apply to the logo, name, or

26  other identifying marks of the public, educational, and

27  governmental programmer or producer.

28         (7)  A court of competent jurisdiction shall have

29  exclusive jurisdiction to enforce any requirement under this

30  section.

31  

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 1         (8)  This section shall stand repealed on December 31,

 2  2011, unless reviewed and saved from repeal through

 3  reenactment by the Legislature.

 4         610.112  Limitation on local authority.--A municipality

 5  or county may not impose on activities of a certificateholder

 6  a requirement:

 7         (1)  That particular business offices be located in the

 8  municipality or county;

 9         (2)  Regarding the filing of reports and documents with

10  the municipality or county which are not required by state or

11  federal law;

12         (3)  For the inspection of a certificateholder's

13  business records; or

14         (4)  For the approval of transfers of ownership or

15  control of a certificateholder's business, except that a

16  municipality or county may require a certificateholder to

17  provide notice of a transfer within a reasonable time.

18         610.113  Discrimination.--

19         (1)  Discrimination among residential subscribers to

20  cable and video franchising services is declared unlawful and

21  constitutes a violation of part II, chapter 501. For purposes

22  of this section, the term discrimination means the denial of

23  access to cable or video service to any individual or group of

24  residential subscribers because of the race, income, gender,

25  or ethnicity of the residents in the local area in which such

26  individual or group resides.

27         (2)  For purposes of determining whether a provider has

28  violated subsection (1), a cable or video service provider may

29  satisfy the requirements of this section through the use of

30  alternative technology that offers service, functionality, and

31  content that is demonstrably similar to that provided through

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 1  the cable or video service provider's system and may include

 2  technology that does not require the use of any public

 3  right-of-way.

 4         (3)  Any person who engages in discrimination in the

 5  delivery of cable or video service is liable for a civil

 6  penalty of not more than $15,000 for each such violation. For

 7  purposes of this section, discrimination against each

 8  individual member of a group constitutes a separate violation

 9  and is subject to a separate penalty as set forth in this

10  section. Fines collected under this section shall first be

11  paid to the Attorney General to cover costs of enforcing this

12  section and any remainder to the Department of Agriculture and

13  Consumer Services.

14         (4)  In addition to all other remedies provided in this

15  chapter, the enforcing authority, or any affected person, may

16  bring an action to enjoin discrimination in the provision of

17  cable and video services and to compel compliance with this

18  section.

19         (5)  Upon a finding by a court of competent

20  jurisdiction that a cable or video service provider has

21  engaged in unlawful discrimination, such provider shall have a

22  reasonable period of time as specified by the court to cure

23  such compliance.

24         610.114  Compliance.--If a certificateholder is found

25  by a court of competent jurisdiction not to be in compliance

26  with the requirements of this chapter, the certificateholder

27  shall have a reasonable period of time, as specified by the

28  court, to cure such noncompliance.

29         610.115  Limitation.--Nothing in this chapter shall be

30  construed to give any local government or the department any

31  authority over any communications service other than cable or

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 1  video services whether offered on a common carrier or private

 2  contract basis.

 3         610.116  Impairment; court-ordered operations.--

 4         (1)  If an incumbent cable service provider is required

 5  to operate under its existing franchise and is legally

 6  prevented by a lawfully issued order of a court of competent

 7  jurisdiction from exercising its right to terminate its

 8  existing franchise pursuant to the terms of s. 610.105, any

 9  certificateholder providing cable service or video service in

10  whole or in part within the service area which is the subject

11  of the incumbent cable service provider's franchise shall also

12  comply with such order, but only as long as such court order

13  remains in effect, with the following franchise terms and

14  conditions as applicable to the incumbent cable service

15  provider in the service area:

16         (a)  The certificateholder shall pay to the

17  municipality or county the lesser of:

18         1.  Any prospective lump-sum or recurring

19  per-subscriber funding obligations to support public,

20  educational, and governmental access channels, institutional

21  networks if any, or other prospective franchise-required

22  monetary grants related to educational or governmental access

23  facilities and capital costs. Prospective lump-sum payments

24  shall be made on an equivalent per-subscriber basis calculated

25  as follows: the amount of the prospective funding obligations

26  divided by the number of subscribers being served by the

27  incumbent cable service provider at the time of payment,

28  divided by the number of months remaining in the incumbent

29  cable service provider's franchise equals the monthly per

30  subscriber amount to be paid by the certificateholder until

31  

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 1  the expiration or termination of the incumbent cable service

 2  provider's franchise; or

 3         2.  An amount equal to 1 percent of the sales price, as

 4  defined in s. 202.11(13), for the taxable monthly retail sales

 5  of cable or video programming services the certificateholder

 6  received from subscribers in the affected municipality or

 7  county. All definitions and exemptions under chapter 202 shall

 8  apply in the determination of taxable monthly retail sales of

 9  cable or video programming services.

10         (b)  No payments shall be due under this subsection

11  until 45 days after the municipality or county notifies the

12  respective providers and the Department of Revenue, in

13  writing, of the appropriate per-subscriber amount. All

14  payments made pursuant to this subsection shall be made as a

15  part of the certificateholder's payment of communications

16  services tax pursuant to s. 202.27, and all administrative

17  provisions of chapter 202 shall apply to any payments made

18  pursuant to this subsection.

19         (c)  Upon request by a municipality or county, the

20  certificateholder shall provide within a reasonable period of

21  time comparable, complementary basic cable or video service

22  offerings to public K-12 schools, public libraries, or

23  government buildings as is required in the incumbent's

24  existing franchise, to the extent such buildings are located

25  within 200 feet of the certificateholder's activated video

26  distribution plant.

27         (d)  Any certificateholder may designate that portion

28  of that subscriber's bill attributable to any fee imposed

29  pursuant to this section as a separate item on the bill and

30  recover such amount from the subscriber.

31  

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 1         (2)  The provisions of subsection (1) shall not alter

 2  the rights of a certificateholder with respect to service

 3  areas designated pursuant to s. 610.104(4)(d). Any

 4  certificateholder providing cable service or video service in

 5  a service area covered by the terms of an existing cable

 6  franchise that is subject to a court or other proceeding

 7  challenging the ability of an incumbent cable service provider

 8  to exercise its legal right to terminate its existing cable

 9  franchise pursuant to s. 610.105 shall have the right to

10  intervene in such proceeding.

11         610.117  Reports to the Legislature.--

12         (1)  The Office of Program Policy Analysis and

13  Government Accountability shall submit to the President of the

14  Senate, the Speaker of the House of Representatives, and the

15  majority and minority leaders of the Senate and House of

16  Representatives, by December 1, 2009, and December 1, 2014, a

17  report on the status of competition in the cable and video

18  service industry, including, by each municipality and county,

19  the number of cable and video service providers, the number of

20  cable and video subscribers served, the number of areas served

21  by fewer than two cable or video service providers, the trend

22  in cable and video service prices, and the identification of

23  any patterns of service as they impact demographic and income

24  groups.

25         (2)  By January 15, 2008, the Department of Agriculture

26  and Consumer Services shall make recommendations to the

27  President of the Senate, the Speaker of the House of

28  Representatives, and the majority and minority leaders of the

29  Senate and House of Representatives regarding the workload and

30  staffing requirements associated with consumer complaints

31  related to video and cable certificateholders. The Department

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 1  of State shall provide to the Department of Agriculture and

 2  Consumer Services, for inclusion in the report, the workload

 3  requirements for processing the certificates of franchise

 4  authority. In addition, the Department of State shall provide

 5  the number of applications filed for cable and video

 6  certificates of franchise authority and the number of

 7  amendments received to original applications for franchise

 8  certificate authority.

 9         610.118  Severability.--If any provision of ss.

10  610.102-610.117 or the application thereof to any person or

11  circumstance is held invalid, such invalidity shall not affect

12  other provisions or application of ss. 610.102-610.117 that

13  can be given effect without the invalid provision or

14  application, and to this end the provisions of ss.

15  610.102-610.117 are severable.

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

17  350.81, Florida Statutes, is amended to read:

18         350.81  Communications services offered by governmental

19  entities.--

20         (3)(a)  A governmental entity that provides a cable or

21  video service shall comply with the Cable Communications

22  Policy Act of 1984, 47 U.S.C. ss. 521 et seq., the regulations

23  issued by the Federal Communications Commission under the

24  Cable Communications Policy Act of 1984, 47 U.S.C. ss. 521 et

25  seq., and all applicable state and federal rules and

26  regulations, including, but not limited to, s. 166.046 and

27  those provisions of chapters 202, 212, and 337, and 610 that

28  which apply to a provider of the services.

29         Section 8.  Section 364.0361, Florida Statutes, is

30  amended to read:

31  

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 1         364.0361  Local government authority; nondiscriminatory

 2  exercise.--A local government shall treat each

 3  telecommunications company in a nondiscriminatory manner when

 4  exercising its authority to grant franchises to a

 5  telecommunications company or to otherwise establish

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

 7  other public property by a telecommunications company. A local

 8  government may not directly or indirectly regulate the terms

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

10  systems, qualifications, services, service quality, service

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

12  provision of any voice-over-Internet protocol, regardless of

13  the platform, provider, or protocol, broadband or information

14  service. This section does not relieve a provider from any

15  obligations under s. 166.046 or s. 337.401.

16         Section 9.  Subsections (6), (7), and (8) of section

17  364.051, Florida Statutes, are amended to read:

18         364.051  Price regulation.--

19         (6)  After a local exchange telecommunications company

20  that has more than 1 million access lines in service has

21  reduced its intrastate switched network access rates to

22  parity, as defined in s. 364.164(5), the local exchange

23  telecommunications company's retail service quality

24  requirements that are not already equal to the service quality

25  requirements imposed upon the competitive local exchange

26  telecommunications companies shall at the company's request to

27  the commission be no greater than those imposed upon

28  competitive local exchange telecommunications companies unless

29  the commission, within 120 days after the company's request,

30  determines otherwise. In such event, the commission may grant

31  some reductions in service quality requirements in some or all

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 1  of the company's local calling areas. The commission may not

 2  impose retail service quality requirements on competitive

 3  local exchange telecommunications companies greater than those

 4  existing on January 1, 2003.

 5         (7)  After a local exchange telecommunications company

 6  that has more than 1 million access lines in service has

 7  reduced its intrastate switched network access rates to

 8  parity, as defined in s. 364.164(5), the local exchange

 9  telecommunications company may petition the commission for

10  regulatory treatment of its retail services at a level no

11  greater than that imposed by the commission upon competitive

12  local exchange telecommunications companies. The local

13  exchange telecommunications company shall:

14         (a)  Show that granting the petition is in the public

15  interest;

16         (b)  Demonstrate that the competition faced by the

17  company is sufficient and sustainable to allow such

18  competition to supplant regulation by the commission; and

19         (c)  Reduce its intrastate switched network access

20  rates to its local reciprocal interconnection rate upon the

21  grant of the petition.

22  

23  The commission shall act upon such a petition within 9 months

24  after its filing with the commission. The commission may not

25  increase the level of regulation for competitive local

26  exchange telecommunications companies to a level greater than

27  that which exists on the date the local exchange

28  telecommunications company files its petition.

29         (8)  The provisions described in subsections (6) and

30  (7) shall apply to any local exchange telecommunications

31  company with 1 million or fewer lines in service that has

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 1  reduced its intrastate switched network access rates to a

 2  level equal to the company's interstate switched network

 3  access rates in effect on January 1, 2003.

 4         Section 10.  Paragraph (h) of subsection (3) of section

 5  364.10, Florida Statutes, is amended to read:

 6         364.10  Undue advantage to person or locality

 7  prohibited; Lifeline service.--

 8         (3)

 9         (h)1.  By December 31, 2007 2003, each state agency

10  that provides benefits to persons eligible for Lifeline

11  service shall undertake, in cooperation with the Department of

12  Children and Family Services, the Department of Education, the

13  commission, the Office of Public Counsel, and

14  telecommunications companies providing Lifeline services, the

15  development of procedures to promote Lifeline participation.

16         2.  If any state agency determines that a person is

17  eligible for Lifeline services, the agency shall immediately

18  forward the information to the commission to ensure that the

19  person is automatically enrolled in the program with the

20  appropriate eligible telecommunications carrier. The state

21  agency shall include an option for an eligible customer to

22  choose not to subscribe to the Lifeline service. The Public

23  Service Commission and the Department of Children and Family

24  Services shall, no later than December 31, 2007, adopt rules

25  creating procedures to automatically enroll eligible customers

26  in Lifeline service.

27         3.  The commission, the Department of Children and

28  Family Services, and the Office of Public Counsel shall enter

29  into a memorandum of understanding establishing the respective

30  duties of the commission, the department, and the public

31  

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 1  counsel with respect to the automatic enrollment procedures no

 2  later than December 31, 2007.

 3         Section 11.  Section 364.163, Florida Statutes, is

 4  amended to read:

 5         364.163  Network access services.--For purposes of this

 6  section, the term "network access service" is defined as any

 7  service provided by a local exchange telecommunications

 8  company to a telecommunications company certificated under

 9  this chapter or licensed by the Federal Communications

10  Commission to access the local exchange telecommunications

11  network, excluding the local interconnection arrangements in

12  s. 364.16 and the resale arrangements in s. 364.161. Each

13  local exchange telecommunications company subject to s.

14  364.051 shall maintain tariffs with the commission containing

15  the terms, conditions, and rates for each of its network

16  access services. The switched network access service rates in

17  effect immediately prior to July 1, 2007, shall be, and shall

18  remain, capped at that level until July 1, 2010. An

19  interexchange telecommunications company may not institute any

20  intrastate connection fee or any similarly named fee.

21         (1)  After a local exchange telecommunications

22  company's intrastate switched network access rates are reduced

23  to or below parity, as defined in s. 364.164(5), the company's

24  intrastate switched network access rates shall be, and shall

25  remain, capped for 3 years.

26         (2)  Any intrastate interexchange telecommunications

27  company whose intrastate switched network access rate is

28  reduced as a result of the rate adjustments made by a local

29  exchange telecommunications company in accordance with s.

30  364.164 shall decrease its intrastate long distance revenues

31  by the amount necessary to return the benefits of such

                                  34

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    Florida Senate - 2007              CS for CS for CS for SB 998
    601-2642-07




 1  reduction to both its residential and business customers. The

 2  intrastate interexchange telecommunications company may

 3  determine the specific intrastate rates to be decreased,

 4  provided that residential and business customers benefit from

 5  the rate decreases. Any in-state connection fee or similarly

 6  named fee shall be eliminated by July 1, 2006, provided that

 7  the timetable determined pursuant to s. 364.164(1) reduces

 8  intrastate switched network access rates in an amount that

 9  results in the elimination of such fee in a revenue-neutral

10  manner. The tariff changes, if any, made by the intrastate

11  interexchange telecommunications company to carry out the

12  requirements of this subsection shall be presumed valid and

13  shall become effective on 1 day's notice.

14         (3)  The commission shall have continuing regulatory

15  oversight of intrastate switched network access and customer

16  long distance rates for purposes of determining the

17  correctness of any rate decrease by a telecommunications

18  company resulting from the application of s. 364.164 and

19  making any necessary adjustments to those rates.

20         Section 12.  Subsection (4) is added to section

21  364.385, Florida Statutes, to read:

22         364.385  Saving clauses.--

23         (4)  The rates and charges for basic local

24  telecommunications service and network access service approved

25  by the commission in accordance with the decisions set forth

26  in Orders Nos. PSC 03-1469-FOF-TL and PSC 04-0456-FOF-TL, and

27  which are in effect immediately prior to July 1, 2007, shall

28  remain in effect and such rates and charges may not be changed

29  after the effective date of this act, except in accordance

30  with the provisions of ss. 364.051 and 364.163.

31  

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    Florida Senate - 2007              CS for CS for CS for SB 998
    601-2642-07




 1         Section 13.  Sections 166.046 and 364.164, Florida

 2  Statutes, are repealed.

 3         Section 14.  This act shall take effect upon becoming a

 4  law.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                           CS/CS/SB 998

 8                                 

 9  Removes the limitation on incumbent cable service providers
    from obtaining a statewide franchise certificate, but requires
10  written agreement from the municipality or county.

11  Requires applicants for a certificate to comply with the
    regulations of the federal Emergency Alert System.
12  
    Requires the terms, conditions, and remaining public,
13  educational, and governmental access channel contributions to
    remain in effect until July 1, 2011. It provides for up to two
14  educational and governmental access channels and requires a
    polling of subscribers with notice for public access channel.
15  Activation  criteria and municipality or county responsibility
    of the manner and form of transmissions are removed. Finally,
16  the public, educational, and governmental channel access
    requirements sunset in 2011, unless reenacted.
17  
    Removes the provision requiring nondiscrimination by
18  municipalities and counties.

19  Prohibits discrimination by declaring it unlawful and a
    violation of the deceptive and unfair trade practices act and
20  provides for enforcement by the Attorney General.

21  Makes technical and conforming changes.

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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