Florida Senate - 2020 SB 1848
By Senator Rodriguez
37-01834-20 20201848__
1 A bill to be entitled
2 An act relating to communications services; amending
3 s. 337.401, F.S.; removing certain communications
4 services lines as items over which certain
5 governmental entities are authorized to prescribe and
6 enforce reasonable rules and regulations; removing
7 provisions that specify limitations and prohibitions
8 on municipalities and counties relating to
9 registrations and renewals of communications services
10 providers; removing provisions that authorize
11 municipalities and counties to require certain
12 information as part of a registration; removing
13 provisions that prohibit municipalities and counties
14 from requiring a payment of fees, costs, or charges
15 for provider registration or renewal; removing
16 provisions that prohibit municipalities and counties
17 from adopting or enforcing certain ordinances, rules,
18 or requirements; removing limitations on municipal and
19 county authority to regulate and manage municipal and
20 county roads or rights-of-way; removing provisions
21 that prohibit certain municipalities and counties from
22 imposing permit fees; removing provisions that specify
23 activities for which permit fees may not be imposed;
24 removing the requirement that enforcement of certain
25 ordinances must be suspended until certain conditions
26 are met; removing a condition for certain in-kind
27 compensation; revising items over which municipalities
28 and counties may exercise regulatory control; removing
29 provisions for requirements relating to right-of-way
30 permits; removing provisions relating to municipal and
31 county authority over pass-through providers; deleting
32 references to, and administration and provisions of,
33 the Advanced Wireless Infrastructure Deployment Act;
34 removing a provision authorizing a civil action for
35 specified violations; removing certain actions a court
36 may take; removing provisions that require that work
37 in a certain authority’s rights-of-way must comply
38 with a specified document; providing an effective
39 date.
40
41 Be It Enacted by the Legislature of the State of Florida:
42
43 Section 1. Paragraph (a) of subsection (1), subsection (3),
44 paragraph (d) of subsection (6), and subsections (7), (8), and
45 (9) of section 337.401, Florida Statutes, are amended to read:
46 337.401 Use of right-of-way for utilities subject to
47 regulation; permit; fees.—
48 (1)(a) The department and local governmental entities,
49 referred to in this section and in ss. 337.402, 337.403, and
50 337.404 as the “authority,” that have jurisdiction and control
51 of public roads or publicly owned rail corridors are authorized
52 to prescribe and enforce reasonable rules or regulations with
53 reference to the placing and maintaining across, on, or within
54 the right-of-way limits of any road or publicly owned rail
55 corridors under their respective jurisdictions any electric
56 transmission, voice, telegraph, data, or other communications
57 services lines or wireless facilities; pole lines; poles;
58 railways; ditches; sewers; water, heat, or gas mains; pipelines;
59 fences; gasoline tanks and pumps; or other structures referred
60 to in this section and in ss. 337.402, 337.403, and 337.404 as
61 the “utility.” The department may enter into a permit-delegation
62 agreement with a governmental entity if issuance of a permit is
63 based on requirements that the department finds will ensure the
64 safety and integrity of facilities of the Department of
65 Transportation; however, the permit-delegation agreement does
66 not apply to facilities of electric utilities as defined in s.
67 366.02(2).
68 (3)(a) Because of the unique circumstances applicable to
69 providers of communications services, including, but not limited
70 to, the circumstances described in paragraph (e) and the fact
71 that federal and state law require the nondiscriminatory
72 treatment of providers of telecommunications services, and
73 because of the desire to promote competition among providers of
74 communications services, it is the intent of the Legislature
75 that municipalities and counties treat providers of
76 communications services in a nondiscriminatory and competitively
77 neutral manner when imposing rules or regulations governing the
78 placement or maintenance of communications facilities in the
79 public roads or rights-of-way. Rules or regulations imposed by a
80 municipality or county relating to providers of communications
81 services placing or maintaining communications facilities in its
82 roads or rights-of-way must be generally applicable to all
83 providers of communications services, taking into account the
84 distinct engineering, construction, operation, maintenance,
85 public works, and safety requirements of the provider’s
86 facilities, and, notwithstanding any other law, may not require
87 a provider of communications services to apply for or enter into
88 an individual license, franchise, or other agreement with the
89 municipality or county as a condition of placing or maintaining
90 communications facilities in its roads or rights-of-way. In
91 addition to other reasonable rules or regulations that a
92 municipality or county may adopt relating to the placement or
93 maintenance of communications facilities in its roads or rights
94 of-way under this subsection or subsection (7), a municipality
95 or county may require a provider of communications services that
96 places or seeks to place facilities in its roads or rights-of
97 way to register with the municipality or county. To register, a
98 provider of communications services may be required only to
99 provide its name; the name, address, and telephone number of a
100 contact person for the registrant; the number of the
101 registrant’s current certificate of authorization issued by the
102 Florida Public Service Commission, the Federal Communications
103 Commission, or the Department of State; a statement of whether
104 the registrant is a pass-through provider as defined in
105 subparagraph (6)(a)1.; the registrant’s federal employer
106 identification number; and any required proof of insurance or
107 self-insuring status adequate to defend and cover claims. A
108 municipality or county may not require a registrant to renew a
109 registration more frequently than every 5 years but may require
110 during this period that a registrant update the registration
111 information provided under this subsection within 90 days after
112 a change in such information. A municipality or county may not
113 require the registrant to provide an inventory of communications
114 facilities, maps, locations of such facilities, or other
115 information by a registrant as a condition of registration,
116 renewal, or for any other purpose; provided, however, that a
117 municipality or county may require as part of a permit
118 application that the applicant identify at-grade communications
119 facilities within 50 feet of the proposed installation location
120 for the placement of at-grade communications facilities. A
121 municipality or county may not require a provider to pay any
122 fee, cost, or other charge for registration or renewal thereof.
123 It is the intent of the Legislature that the placement,
124 operation, maintenance, upgrading, and extension of
125 communications facilities not be unreasonably interrupted or
126 delayed through the permitting or other local regulatory
127 process. Except as provided in this chapter or otherwise
128 expressly authorized by chapter 202, chapter 364, or chapter
129 610, a municipality or county may not adopt or enforce any
130 ordinance, regulation, or requirement as to the placement or
131 operation of communications facilities in a right-of-way by a
132 communications services provider authorized by state or local
133 law to operate in a right-of-way; regulate any communications
134 services; or impose or collect any tax, fee, cost, charge, or
135 exaction for the provision of communications services over the
136 communications services provider’s communications facilities in
137 a right-of-way.
138 (b) Registration described in paragraph (a) does not
139 establish a right to place or maintain, or priority for the
140 placement or maintenance of, a communications facility in roads
141 or rights-of-way of a municipality or county. Each municipality
142 and county retains the authority to regulate and manage
143 municipal and county roads or rights-of-way in exercising its
144 police power, subject to the limitations imposed in this section
145 and chapters 202 and 610. Any rules or regulations adopted by a
146 municipality or county which govern the occupation of its roads
147 or rights-of-way by providers of communications services must be
148 related to the placement or maintenance of facilities in such
149 roads or rights-of-way, must be reasonable and
150 nondiscriminatory, and may include only those matters necessary
151 to manage the roads or rights-of-way of the municipality or
152 county.
153 (c) Any municipality or county that, as of January 1, 2019,
154 elected to require permit fees from any provider of
155 communications services that uses or occupies municipal or
156 county roads or rights-of-way pursuant to former paragraph (c)
157 or former paragraph (j), Florida Statutes 2018, may continue to
158 require and collect such fees. A municipality or county that
159 elected as of January 1, 2019, to require permit fees may elect
160 to forego such fees as provided herein. A municipality or county
161 that elected as of January 1, 2019, not to require permit fees
162 may not elect to impose permit fees. All fees authorized under
163 this paragraph must be reasonable and commensurate with the
164 direct and actual cost of the regulatory activity, including
165 issuing and processing permits, plan reviews, physical
166 inspection, and direct administrative costs; must be
167 demonstrable; and must be equitable among users of the roads or
168 rights-of-way. A fee authorized under this paragraph may not be
169 offset against the tax imposed under chapter 202; include the
170 costs of roads or rights-of-way acquisition or roads or rights
171 of-way rental; include any general administrative, management,
172 or maintenance costs of the roads or rights-of-way; or be based
173 on a percentage of the value or costs associated with the work
174 to be performed on the roads or rights-of-way. In an action to
175 recover amounts due for a fee not authorized under this
176 paragraph, the prevailing party may recover court costs and
177 attorney fees at trial and on appeal. In addition to the
178 limitations set forth in this section, a fee levied by a
179 municipality or charter county under this paragraph may not
180 exceed $100. However, permit fees may not be imposed with
181 respect to permits that may be required for service drop lines
182 not required to be noticed under s. 556.108(5) or for any
183 activity that does not require the physical disturbance of the
184 roads or rights-of-way or does not impair access to or full use
185 of the roads or rights-of-way, including, but not limited to,
186 the performance of service restoration work on existing
187 facilities, extensions of such facilities for providing
188 communications services to customers, and the placement of micro
189 wireless facilities in accordance with subparagraph (7)(e)3.
190 1. If a municipality or charter county elects to not
191 require permit fees, the total rate for the local communications
192 services tax as computed under s. 202.20 for that municipality
193 or charter county may be increased by ordinance or resolution by
194 an amount not to exceed a rate of 0.12 percent.
195 2. If a noncharter county elects to not require permit
196 fees, the total rate for the local communications services tax
197 as computed under s. 202.20 for that noncharter county may be
198 increased by ordinance or resolution by an amount not to exceed
199 a rate of 0.24 percent, to replace the revenue the noncharter
200 county would otherwise have received from permit fees for
201 providers of communications services.
202 (d) In addition to any other notice requirements, a
203 municipality must provide to the Secretary of State, at least 10
204 days prior to consideration on first reading, notice of a
205 proposed ordinance governing a telecommunications company
206 placing or maintaining telecommunications facilities in its
207 roads or rights-of-way. In addition to any other notice
208 requirements, a county must provide to the Secretary of State,
209 at least 15 days prior to consideration at a public hearing,
210 notice of a proposed ordinance governing a telecommunications
211 company placing or maintaining telecommunications facilities in
212 its roads or rights-of-way. The notice required by this
213 paragraph must be published by the Secretary of State on a
214 designated Internet website. The failure of a municipality or
215 county to provide such notice does not render the ordinance
216 invalid, provided that enforcement of such ordinance must be
217 suspended until 30 days after the municipality or county
218 provides the required notice.
219 (e) The authority of municipalities and counties to require
220 franchise fees from providers of communications services, with
221 respect to the provision of communications services, is
222 specifically preempted by the state because of unique
223 circumstances applicable to providers of communications services
224 when compared to other utilities occupying municipal or county
225 roads or rights-of-way. Providers of communications services may
226 provide similar services in a manner that requires the placement
227 of facilities in municipal or county roads or rights-of-way or
228 in a manner that does not require the placement of facilities in
229 such roads or rights-of-way. Although similar communications
230 services may be provided by different means, the state desires
231 to treat providers of communications services in a
232 nondiscriminatory manner and to have the taxes, franchise fees,
233 and other fees, costs, and financial or regulatory exactions
234 paid by or imposed on providers of communications services be
235 competitively neutral. Municipalities and counties retain all
236 existing authority, if any, to collect franchise fees from users
237 or occupants of municipal or county roads or rights-of-way other
238 than providers of communications services, and the provisions of
239 this subsection shall have no effect upon this authority. The
240 provisions of this subsection do not restrict the authority, if
241 any, of municipalities or counties or other governmental
242 entities to receive reasonable rental fees based on fair market
243 value for the use of public lands and buildings on property
244 outside the public roads or rights-of-way for the placement of
245 communications antennas and towers.
246 (f) Except as expressly allowed or authorized by general
247 law and except for the rights-of-way permit fees subject to
248 paragraph (c), a municipality or county may not levy on a
249 provider of communications services a tax, fee, or other charge
250 or imposition for operating as a provider of communications
251 services within the jurisdiction of the municipality or county
252 which is in any way related to using its roads or rights-of-way.
253 A municipality or county may not require or solicit in-kind
254 compensation, except as otherwise provided in s. 202.24(2)(c)8.,
255 provided that the in-kind compensation is not a franchise fee
256 under federal law. Nothing in this paragraph impairs the
257 authority of a municipality or county to request public,
258 educational, or governmental access channels pursuant to s.
259 610.109. Nothing in this paragraph shall impair any ordinance or
260 agreement in effect on May 22, 1998, or any voluntary agreement
261 entered into subsequent to that date, which provides for or
262 allows in-kind compensation by a telecommunications company.
263 (g) A municipality or county may not use its authority over
264 the placement of facilities in its roads and rights-of-way as a
265 basis for asserting or exercising regulatory control over a
266 provider of communications services regarding matters within the
267 exclusive jurisdiction of the Florida Public Service Commission
268 or the Federal Communications Commission, including, but not
269 limited to, the operations, systems, equipment, technology,
270 qualifications, services, service quality, service territory,
271 and prices of a provider of communications services. A
272 municipality or county may not require any permit for the
273 maintenance, repair, replacement, extension, or upgrade of
274 existing aerial wireline communications facilities on utility
275 poles or for aerial wireline facilities between existing
276 wireline communications facility attachments on utility poles by
277 a communications services provider. However, a municipality or
278 county may require a right-of-way permit for work that involves
279 excavation, closure of a sidewalk, or closure of a vehicular
280 lane or parking lane, unless the provider is performing service
281 restoration to existing facilities. A permit application
282 required by an authority under this section for the placement of
283 communications facilities must be processed and acted upon
284 consistent with the timeframes provided in subparagraphs
285 (7)(d)7., 8., and 9. In addition, a municipality or county may
286 not require any permit or other approval, fee, charge, or cost,
287 or other exaction for the maintenance, repair, replacement,
288 extension, or upgrade of existing aerial lines or underground
289 communications facilities located on private property outside of
290 the public rights-of-way. As used in this section, the term
291 “extension of existing facilities” includes those extensions
292 from the rights-of-way into a customer’s private property for
293 purposes of placing a service drop or those extensions from the
294 rights-of-way into a utility easement to provide service to a
295 discrete identifiable customer or group of customers.
296 (h) A provider of communications services that has obtained
297 permission to occupy the roads or rights-of-way of an
298 incorporated municipality pursuant to s. 362.01 or that is
299 otherwise lawfully occupying the roads or rights-of-way of a
300 municipality or county shall not be required to obtain consent
301 to continue such lawful occupation of those roads or rights-of
302 way; however, nothing in this paragraph shall be interpreted to
303 limit the power of a municipality or county to adopt or enforce
304 reasonable rules or regulations as provided in this section and
305 consistent with chapters 202, 364, and 610. Any such rules or
306 regulations must be in writing, and registered providers of
307 communications services in the municipality or county must be
308 given at least 60 days’ advance written notice of any changes to
309 the rules and regulations.
310 (i) Except as expressly provided in this section, this
311 section does not modify the authority of municipalities and
312 counties to levy the tax authorized in chapter 202 or the duties
313 of providers of communications services under ss. 337.402
314 337.404. This section does not apply to building permits, pole
315 attachments, or private roads, private easements, and private
316 rights-of-way.
317 (j) Notwithstanding the provisions of s. 202.19, when a
318 local communications services tax rate is changed as a result of
319 an election made or changed under this subsection, such rate may
320 not be rounded to tenths.
321 (6)
322 (d) The amounts charged pursuant to this subsection shall
323 be based on the linear miles of roads or rights-of-way where a
324 communications facility is placed, not based on a summation of
325 the lengths of individual cables, conduits, strands, or fibers.
326 The amounts referenced in this subsection may be charged only
327 once annually and only to one person annually for any
328 communications facility. A municipality or county shall
329 discontinue charging such amounts to a person that has ceased to
330 be a pass-through provider. Any annual amounts charged shall be
331 reduced for a prorated portion of any 12-month period during
332 which the person remits taxes imposed by the municipality or
333 county pursuant to chapter 202. Any excess amounts paid to a
334 municipality or county shall be refunded to the person upon
335 written notice of the excess to the municipality or county. A
336 municipality or county may require a pass-through provider to
337 provide an annual notarized statement identifying the total
338 number of linear miles of pass-through facilities in the
339 municipality’s or county’s rights-of-way. Upon request from a
340 municipality or county, a pass-through provider must provide
341 reasonable access to maps of pass-through facilities located in
342 the rights-of-way of the municipality or county making the
343 request. The scope of the request must be limited to only those
344 maps of pass-through facilities from which the calculation of
345 the linear miles of pass-through facilities in the rights-of-way
346 can be determined. The request must be accompanied by an
347 affidavit that the person making the request is authorized by
348 the municipality or county to review tax information related to
349 the revenue and mileage calculations for pass-through providers.
350 A request may not be made more than once annually to a pass
351 through provider.
352 (7)(a) This subsection may be cited as the “Advanced
353 Wireless Infrastructure Deployment Act.”
354 (b) As used in this subsection, the term:
355 1. “Antenna” means communications equipment that transmits
356 or receives electromagnetic radio frequency signals used in
357 providing wireless services.
358 2. “Applicable codes” means uniform building, fire,
359 electrical, plumbing, or mechanical codes adopted by a
360 recognized national code organization or local amendments to
361 those codes enacted solely to address threats of destruction of
362 property or injury to persons, and includes the National
363 Electric Safety Code and the 2017 edition of the Florida
364 Department of Transportation Utility Accommodation Manual.
365 3. “Applicant” means a person who submits an application
366 and is a wireless provider.
367 4. “Application” means a request submitted by an applicant
368 to an authority for a permit to collocate small wireless
369 facilities or to place a new utility pole used to support a
370 small wireless facility.
371 5. “Authority” means a county or municipality having
372 jurisdiction and control of the rights-of-way of any public
373 road. The term does not include the Department of
374 Transportation. Rights-of-way under the jurisdiction and control
375 of the department are excluded from this subsection.
376 6. “Authority utility pole” means a utility pole owned by
377 an authority in the right-of-way. The term does not include a
378 utility pole owned by a municipal electric utility, a utility
379 pole used to support municipally owned or operated electric
380 distribution facilities, or a utility pole located in the right
381 of-way within:
382 a. A retirement community that:
383 (I) Is deed restricted as housing for older persons as
384 defined in s. 760.29(4)(b);
385 (II) Has more than 5,000 residents; and
386 (III) Has underground utilities for electric transmission
387 or distribution.
388 b. A municipality that:
389 (I) Is located on a coastal barrier island as defined in s.
390 161.053(1)(b)3.;
391 (II) Has a land area of less than 5 square miles;
392 (III) Has less than 10,000 residents; and
393 (IV) Has, before July 1, 2017, received referendum approval
394 to issue debt to finance municipal-wide undergrounding of its
395 utilities for electric transmission or distribution.
396 7. “Collocate” or “collocation” means to install, mount,
397 maintain, modify, operate, or replace one or more wireless
398 facilities on, under, within, or adjacent to a wireless support
399 structure or utility pole. The term does not include the
400 installation of a new utility pole or wireless support structure
401 in the public rights-of-way.
402 8. “FCC” means the Federal Communications Commission.
403 9. “Micro wireless facility” means a small wireless
404 facility having dimensions no larger than 24 inches in length,
405 15 inches in width, and 12 inches in height and an exterior
406 antenna, if any, no longer than 11 inches.
407 10. “Small wireless facility” means a wireless facility
408 that meets the following qualifications:
409 a. Each antenna associated with the facility is located
410 inside an enclosure of no more than 6 cubic feet in volume or,
411 in the case of antennas that have exposed elements, each antenna
412 and all of its exposed elements could fit within an enclosure of
413 no more than 6 cubic feet in volume; and
414 b. All other wireless equipment associated with the
415 facility is cumulatively no more than 28 cubic feet in volume.
416 The following types of associated ancillary equipment are not
417 included in the calculation of equipment volume: electric
418 meters, concealment elements, telecommunications demarcation
419 boxes, ground-based enclosures, grounding equipment, power
420 transfer switches, cutoff switches, vertical cable runs for the
421 connection of power and other services, and utility poles or
422 other support structures.
423 11. “Utility pole” means a pole or similar structure that
424 is used in whole or in part to provide communications services
425 or for electric distribution, lighting, traffic control,
426 signage, or a similar function. The term includes the vertical
427 support structure for traffic lights but does not include a
428 horizontal structure to which signal lights or other traffic
429 control devices are attached and does not include a pole or
430 similar structure 15 feet in height or less unless an authority
431 grants a waiver for such pole.
432 12. “Wireless facility” means equipment at a fixed location
433 which enables wireless communications between user equipment and
434 a communications network, including radio transceivers,
435 antennas, wires, coaxial or fiber-optic cable or other cables,
436 regular and backup power supplies, and comparable equipment,
437 regardless of technological configuration, and equipment
438 associated with wireless communications. The term includes small
439 wireless facilities. The term does not include:
440 a. The structure or improvements on, under, within, or
441 adjacent to the structure on which the equipment is collocated;
442 b. Wireline backhaul facilities; or
443 c. Coaxial or fiber-optic cable that is between wireless
444 structures or utility poles or that is otherwise not immediately
445 adjacent to or directly associated with a particular antenna.
446 13. “Wireless infrastructure provider” means a person who
447 has been certificated under chapter 364 to provide
448 telecommunications service or under chapter 610 to provide cable
449 or video services in this state, or that person’s affiliate, and
450 who builds or installs wireless communication transmission
451 equipment, wireless facilities, or wireless support structures
452 but is not a wireless services provider.
453 14. “Wireless provider” means a wireless infrastructure
454 provider or a wireless services provider.
455 15. “Wireless services” means any services provided using
456 licensed or unlicensed spectrum, whether at a fixed location or
457 mobile, using wireless facilities.
458 16. “Wireless services provider” means a person who
459 provides wireless services.
460 17. “Wireless support structure” means a freestanding
461 structure, such as a monopole, a guyed or self-supporting tower,
462 or another existing or proposed structure designed to support or
463 capable of supporting wireless facilities. The term does not
464 include a utility pole, pedestal, or other support structure for
465 ground-based equipment not mounted on a utility pole and less
466 than 5 feet in height.
467 (c) Except as provided in this subsection, an authority may
468 not prohibit, regulate, or charge for the collocation of small
469 wireless facilities in the public rights-of-way or for the
470 installation, maintenance, modification, operation, or
471 replacement of utility poles used for the collocation of small
472 wireless facilities in the public rights-of-way.
473 (d) An authority may require a registration process and
474 permit fees in accordance with subsection (3). An authority
475 shall accept applications for permits and shall process and
476 issue permits subject to the following requirements:
477 1. An authority may not directly or indirectly require an
478 applicant to perform services unrelated to the collocation for
479 which approval is sought, such as in-kind contributions to the
480 authority, including reserving fiber, conduit, or pole space for
481 the authority.
482 2. An applicant may not be required to provide more
483 information to obtain a permit than is necessary to demonstrate
484 the applicant’s compliance with applicable codes for the
485 placement of small wireless facilities in the locations
486 identified in the application. An applicant may not be required
487 to provide inventories, maps, or locations of communications
488 facilities in the right-of-way other than as necessary to avoid
489 interference with other at-grade or aerial facilities located at
490 the specific location proposed for a small wireless facility or
491 within 50 feet of such location.
492 3. An authority may not:
493 a. Require the placement of small wireless facilities on
494 any specific utility pole or category of poles;
495 b. Require the placement of multiple antenna systems on a
496 single utility pole;
497 c. Require a demonstration that collocation of a small
498 wireless facility on an existing structure is not legally or
499 technically possible as a condition for granting a permit for
500 the collocation of a small wireless facility on a new utility
501 pole except as provided in paragraph (i);
502 d. Require compliance with an authority’s provisions
503 regarding placement of small wireless facilities or a new
504 utility pole used to support a small wireless facility in
505 rights-of-way under the control of the department unless the
506 authority has received a delegation from the department for the
507 location of the small wireless facility or utility pole, or
508 require such compliance as a condition to receive a permit that
509 is ancillary to the permit for collocation of a small wireless
510 facility, including an electrical permit;
511 e. Require a meeting before filing an application;
512 f. Require direct or indirect public notification or a
513 public meeting for the placement of communication facilities in
514 the right-of-way;
515 g. Limit the size or configuration of a small wireless
516 facility or any of its components, if the small wireless
517 facility complies with the size limits in this subsection;
518 h. Prohibit the installation of a new utility pole used to
519 support the collocation of a small wireless facility if the
520 installation otherwise meets the requirements of this
521 subsection; or
522 i. Require that any component of a small wireless facility
523 be placed underground except as provided in paragraph (i).
524 4. Subject to paragraph (r), an authority may not limit the
525 placement, by minimum separation distances, of small wireless
526 facilities, utility poles on which small wireless facilities are
527 or will be collocated, or other at-grade communications
528 facilities. However, within 14 days after the date of filing the
529 application, an authority may request that the proposed location
530 of a small wireless facility be moved to another location in the
531 right-of-way and placed on an alternative authority utility pole
532 or support structure or placed on a new utility pole. The
533 authority and the applicant may negotiate the alternative
534 location, including any objective design standards and
535 reasonable spacing requirements for ground-based equipment, for
536 30 days after the date of the request. At the conclusion of the
537 negotiation period, if the alternative location is accepted by
538 the applicant, the applicant must notify the authority of such
539 acceptance and the application shall be deemed granted for any
540 new location for which there is agreement and all other
541 locations in the application. If an agreement is not reached,
542 the applicant must notify the authority of such nonagreement and
543 the authority must grant or deny the original application within
544 90 days after the date the application was filed. A request for
545 an alternative location, an acceptance of an alternative
546 location, or a rejection of an alternative location must be in
547 writing and provided by electronic mail.
548 5. An authority shall limit the height of a small wireless
549 facility to 10 feet above the utility pole or structure upon
550 which the small wireless facility is to be collocated. Unless
551 waived by an authority, the height for a new utility pole is
552 limited to the tallest existing utility pole as of July 1, 2017,
553 located in the same right-of-way, other than a utility pole for
554 which a waiver has previously been granted, measured from grade
555 in place within 500 feet of the proposed location of the small
556 wireless facility. If there is no utility pole within 500 feet,
557 the authority shall limit the height of the utility pole to 50
558 feet.
559 6. The installation by a communications services provider
560 of a utility pole in the public rights-of-way, other than a
561 utility pole used to support a small wireless facility, is
562 subject to authority rules or regulations governing the
563 placement of utility poles in the public rights-of-way.
564 7. Within 14 days after receiving an application, an
565 authority must determine and notify the applicant by electronic
566 mail as to whether the application is complete. If an
567 application is deemed incomplete, the authority must
568 specifically identify the missing information. An application is
569 deemed complete if the authority fails to provide notification
570 to the applicant within 14 days.
571 8. An application must be processed on a nondiscriminatory
572 basis. A complete application is deemed approved if an authority
573 fails to approve or deny the application within 60 days after
574 receipt of the application. If an authority does not use the 30
575 day negotiation period provided in subparagraph 4., the parties
576 may mutually agree to extend the 60-day application review
577 period. The authority shall grant or deny the application at the
578 end of the extended period. A permit issued pursuant to an
579 approved application shall remain effective for 1 year unless
580 extended by the authority.
581 9. An authority must notify the applicant of approval or
582 denial by electronic mail. An authority shall approve a complete
583 application unless it does not meet the authority’s applicable
584 codes. If the application is denied, the authority must specify
585 in writing the basis for denial, including the specific code
586 provisions on which the denial was based, and send the
587 documentation to the applicant by electronic mail on the day the
588 authority denies the application. The applicant may cure the
589 deficiencies identified by the authority and resubmit the
590 application within 30 days after notice of the denial is sent to
591 the applicant. The authority shall approve or deny the revised
592 application within 30 days after receipt or the application is
593 deemed approved. The review of a revised application is limited
594 to the deficiencies cited in the denial. If an authority
595 provides for administrative review of the denial of an
596 application, the review must be complete and a written decision
597 issued within 45 days after a written request for review is
598 made. A denial must identify the specific code provisions on
599 which the denial is based. If the administrative review is not
600 complete within 45 days, the authority waives any claim
601 regarding failure to exhaust administrative remedies in any
602 judicial review of the denial of an application.
603 10. An applicant seeking to collocate small wireless
604 facilities within the jurisdiction of a single authority may, at
605 the applicant’s discretion, file a consolidated application and
606 receive a single permit for the collocation of up to 30 small
607 wireless facilities. If the application includes multiple small
608 wireless facilities, an authority may separately address small
609 wireless facility collocations for which incomplete information
610 has been received or which are denied.
611 11. An authority may deny an application to collocate a
612 small wireless facility or place a utility pole used to support
613 a small wireless facility in the public rights-of-way if the
614 proposed small wireless facility or utility pole used to support
615 a small wireless facility:
616 a. Materially interferes with the safe operation of traffic
617 control equipment.
618 b. Materially interferes with sight lines or clear zones
619 for transportation, pedestrians, or public safety purposes.
620 c. Materially interferes with compliance with the Americans
621 with Disabilities Act or similar federal or state standards
622 regarding pedestrian access or movement.
623 d. Materially fails to comply with the 2017 edition of the
624 Florida Department of Transportation Utility Accommodation
625 Manual.
626 e. Fails to comply with applicable codes.
627 f. Fails to comply with objective design standards
628 authorized under paragraph (r).
629 12. An authority may adopt by ordinance provisions for
630 insurance coverage, indemnification, force majeure, abandonment,
631 authority liability, or authority warranties. Such provisions
632 must be reasonable and nondiscriminatory. An authority may
633 require a construction bond to secure restoration of the
634 postconstruction rights-of-way to the preconstruction condition.
635 However, such bond must be time-limited to not more than 18
636 months after the construction to which the bond applies is
637 completed. For any financial obligation required by an authority
638 allowed under this section, the authority shall accept a letter
639 of credit or similar financial instrument issued by any
640 financial institution that is authorized to do business within
641 the United States, provided that a claim against the financial
642 instrument may be made by electronic means, including by
643 facsimile. A provider of communications services may add an
644 authority to any existing bond, insurance policy, or other
645 relevant financial instrument, and the authority must accept
646 such proof of coverage without any conditions other than consent
647 to venue for purposes of any litigation to which the authority
648 is a party. An authority may not require a communications
649 services provider to indemnify it for liabilities not caused by
650 the provider, including liabilities arising from the authority’s
651 negligence, gross negligence, or willful conduct.
652 13. Collocation of a small wireless facility on an
653 authority utility pole does not provide the basis for the
654 imposition of an ad valorem tax on the authority utility pole.
655 14. An authority may reserve space on authority utility
656 poles for future public safety uses. However, a reservation of
657 space may not preclude collocation of a small wireless facility.
658 If replacement of the authority utility pole is necessary to
659 accommodate the collocation of the small wireless facility and
660 the future public safety use, the pole replacement is subject to
661 make-ready provisions and the replaced pole shall accommodate
662 the future public safety use.
663 15. A structure granted a permit and installed pursuant to
664 this subsection shall comply with chapter 333 and federal
665 regulations pertaining to airport airspace protections.
666 (e) An authority may not require any permit or other
667 approval or require fees or other charges, costs, or other
668 exactions for:
669 1. Routine maintenance, the performance of service
670 restoration work on existing facilities, or repair work,
671 including, but not limited to, emergency repairs of existing
672 facilities or extensions of such facilities for providing
673 communications services to customers;
674 2. Replacement of existing wireless facilities with
675 wireless facilities that are substantially similar or of the
676 same or smaller size; or
677 3. Installation, placement, maintenance, or replacement of
678 micro wireless facilities that are suspended on cables strung
679 between existing utility poles in compliance with applicable
680 codes by or for a communications services provider authorized to
681 occupy the rights-of-way and who is remitting taxes under
682 chapter 202. An authority may require an initial letter from or
683 on behalf of such provider, which is effective upon filing,
684 attesting that the micro wireless facility dimensions comply
685 with the limits of this subsection. The authority may not
686 require any additional filing or other information as long as
687 the provider is deploying the same, a substantially similar, or
688 a smaller size micro wireless facility equipment.
689
690 Notwithstanding this paragraph, an authority may require a
691 right-of-way permit for work that involves excavation, closure
692 of a sidewalk, or closure of a vehicular lane or parking lane,
693 unless the provider is performing service restoration on an
694 existing facility and the work is done in compliance with the
695 2017 edition of the Florida Department of Transportation Utility
696 Accommodation Manual. An authority may require notice of such
697 work within 30 days after restoration and may require an after
698 the-fact permit for work which would otherwise have required a
699 permit.
700 (f) Collocation of small wireless facilities on authority
701 utility poles is subject to the following requirements:
702 1. An authority may not enter into an exclusive arrangement
703 with any person for the right to attach equipment to authority
704 utility poles.
705 2. The rates and fees for collocations on authority utility
706 poles must be nondiscriminatory, regardless of the services
707 provided by the collocating person.
708 3. The rate to collocate small wireless facilities on an
709 authority utility pole may not exceed $150 per pole annually.
710 4. Agreements between authorities and wireless providers
711 that are in effect on July 1, 2017, and that relate to the
712 collocation of small wireless facilities in the right-of-way,
713 including the collocation of small wireless facilities on
714 authority utility poles, remain in effect, subject to applicable
715 termination provisions. The wireless provider may accept the
716 rates, fees, and terms established under this subsection for
717 small wireless facilities and utility poles that are the subject
718 of an application submitted after the rates, fees, and terms
719 become effective.
720 5. A person owning or controlling an authority utility pole
721 shall offer rates, fees, and other terms that comply with this
722 subsection. By the later of January 1, 2018, or 3 months after
723 receiving a request to collocate its first small wireless
724 facility on a utility pole owned or controlled by an authority,
725 the person owning or controlling the authority utility pole
726 shall make available, through ordinance or otherwise, rates,
727 fees, and terms for the collocation of small wireless facilities
728 on the authority utility pole which comply with this subsection.
729 a. The rates, fees, and terms must be nondiscriminatory and
730 competitively neutral and must comply with this subsection.
731 b. For an authority utility pole that supports an aerial
732 facility used to provide communications services or electric
733 service, the parties shall comply with the process for make
734 ready work under 47 U.S.C. s. 224 and implementing regulations.
735 The good faith estimate of the person owning or controlling the
736 pole for any make-ready work necessary to enable the pole to
737 support the requested collocation must include pole replacement
738 if necessary.
739 c. For an authority utility pole that does not support an
740 aerial facility used to provide communications services or
741 electric service, the authority shall provide a good faith
742 estimate for any make-ready work necessary to enable the pole to
743 support the requested collocation, including necessary pole
744 replacement, within 60 days after receipt of a complete
745 application. Make-ready work, including any pole replacement,
746 must be completed within 60 days after written acceptance of the
747 good faith estimate by the applicant. Alternatively, an
748 authority may require the applicant seeking to collocate a small
749 wireless facility to provide a make-ready estimate at the
750 applicant’s expense for the work necessary to support the small
751 wireless facility, including pole replacement, and perform the
752 make-ready work. If pole replacement is required, the scope of
753 the make-ready estimate is limited to the design, fabrication,
754 and installation of a utility pole that is substantially similar
755 in color and composition. The authority may not condition or
756 restrict the manner in which the applicant obtains, develops, or
757 provides the estimate or conducts the make-ready work subject to
758 usual construction restoration standards for work in the right
759 of-way. The replaced or altered utility pole shall remain the
760 property of the authority.
761 d. An authority may not require more make-ready work than
762 is required to meet applicable codes or industry standards. Fees
763 for make-ready work may not include costs related to preexisting
764 damage or prior noncompliance. Fees for make-ready work,
765 including any pole replacement, may not exceed actual costs or
766 the amount charged to communications services providers other
767 than wireless services providers for similar work and may not
768 include any consultant fee or expense.
769 (g) For any applications filed before the effective date of
770 ordinances implementing this subsection, an authority may apply
771 current ordinances relating to placement of communications
772 facilities in the right-of-way related to registration,
773 permitting, insurance coverage, indemnification, force majeure,
774 abandonment, authority liability, or authority warranties.
775 Permit application requirements and small wireless facility
776 placement requirements, including utility pole height limits,
777 that conflict with this subsection must be waived by the
778 authority. An authority may not institute, either expressly or
779 de facto, a moratorium, zoning-in-progress, or other mechanism
780 that would prohibit or delay the filing, receiving, or
781 processing of registrations, applications, or issuing of permits
782 or other approvals for the collocation of small wireless
783 facilities or the installation, modification, or replacement of
784 utility poles used to support the collocation of small wireless
785 facilities.
786 (h) Except as provided in this section or specifically
787 required by state law, an authority may not adopt or enforce any
788 regulation on the placement or operation of communications
789 facilities in the rights-of-way by a provider authorized by
790 state law to operate in the rights-of-way and may not regulate
791 any communications services or impose or collect any tax, fee,
792 or charge not specifically authorized under state law. This
793 paragraph does not alter any law regarding an authority’s
794 ability to regulate the relocation of facilities.
795 (i)1. In an area where an authority has required all public
796 utility lines in the rights-of-way to be placed underground, a
797 wireless provider must comply with written, objective,
798 reasonable, and nondiscriminatory requirements that prohibit new
799 utility poles used to support small wireless facilities if:
800 a. The authority, at least 90 days prior to the submission
801 of an application, has required all public utility lines to be
802 placed underground;
803 b. Structures that the authority allows to remain above
804 ground are reasonably available to wireless providers for the
805 collocation of small wireless facilities and may be replaced by
806 a wireless provider to accommodate the collocation of small
807 wireless facilities; and
808 c. A wireless provider may install a new utility pole in
809 the designated area in the right-of-way that otherwise complies
810 with this subsection and it is not reasonably able to provide
811 wireless service by collocating on a remaining utility pole or
812 other structure in the right-of-way.
813 2. For small wireless facilities installed before an
814 authority adopts requirements that public utility lines be
815 placed underground, an authority adopting such requirements
816 must:
817 a. Allow a wireless provider to maintain the small wireless
818 facilities in place subject to any applicable pole attachment
819 agreement with the pole owner; or
820 b. Allow the wireless provider to replace the associated
821 pole within 50 feet of the prior location in accordance with
822 paragraph (r).
823 (j) A wireless infrastructure provider may apply to an
824 authority to place utility poles in the public rights-of-way to
825 support the collocation of small wireless facilities. The
826 application must include an attestation that small wireless
827 facilities will be collocated on the utility pole or structure
828 and will be used by a wireless services provider to provide
829 service within 9 months after the date the application is
830 approved. The authority shall accept and process the application
831 in accordance with subparagraph (d)6. and any applicable codes
832 and other local codes governing the placement of utility poles
833 in the public rights-of-way.
834 (k) This subsection does not limit a local government’s
835 authority to enforce historic preservation zoning regulations
836 consistent with the preservation of local zoning authority under
837 47 U.S.C. s. 332(c)(7), the requirements for facility
838 modifications under 47 U.S.C. s. 1455(a), or the National
839 Historic Preservation Act of 1966, as amended, and the
840 regulations adopted to implement such laws. An authority may
841 enforce local codes, administrative rules, or regulations
842 adopted by ordinance in effect on April 1, 2017, which are
843 applicable to a historic area designated by the state or
844 authority. An authority may enforce pending local ordinances,
845 administrative rules, or regulations applicable to a historic
846 area designated by the state if the intent to adopt such changes
847 has been publicly declared on or before April 1, 2017. An
848 authority may waive any ordinances or other requirements that
849 are subject to this paragraph.
850 (l) This subsection does not authorize a person to
851 collocate or attach wireless facilities, including any antenna,
852 micro wireless facility, or small wireless facility, on a
853 privately owned utility pole, a utility pole owned by an
854 electric cooperative or a municipal electric utility, a
855 privately owned wireless support structure, or other private
856 property without the consent of the property owner.
857 (m) The approval of the installation, placement,
858 maintenance, or operation of a small wireless facility pursuant
859 to this subsection does not authorize the provision of any
860 voice, data, or video communications services or the
861 installation, placement, maintenance, or operation of any
862 communications facilities other than small wireless facilities
863 in the right-of-way.
864 (n) This subsection does not affect provisions relating to
865 pass-through providers in subsection (6).
866 (o) This subsection does not authorize a person to
867 collocate or attach small wireless facilities or micro wireless
868 facilities on a utility pole, unless otherwise permitted by
869 federal law, or erect a wireless support structure in the right
870 of-way located within a retirement community that:
871 1. Is deed restricted as housing for older persons as
872 defined in s. 760.29(4)(b);
873 2. Has more than 5,000 residents; and
874 3. Has underground utilities for electric transmission or
875 distribution.
876
877 This paragraph does not apply to the installation, placement,
878 maintenance, or replacement of micro wireless facilities on any
879 existing and duly authorized aerial communications facilities,
880 provided that once aerial facilities are converted to
881 underground facilities, any such collocation or construction
882 shall be only as provided by the municipality’s underground
883 utilities ordinance.
884 (p) This subsection does not authorize a person to
885 collocate or attach small wireless facilities or micro wireless
886 facilities on a utility pole, unless otherwise permitted by
887 federal law, or erect a wireless support structure in the right
888 of-way located within a municipality that:
889 1. Is located on a coastal barrier island as defined in s.
890 161.053(1)(b)3.;
891 2. Has a land area of less than 5 square miles;
892 3. Has fewer than 10,000 residents; and
893 4. Has, before July 1, 2017, received referendum approval
894 to issue debt to finance municipal-wide undergrounding of its
895 utilities for electric transmission or distribution.
896
897 This paragraph does not apply to the installation, placement,
898 maintenance, or replacement of micro wireless facilities on any
899 existing and duly authorized aerial communications facilities,
900 provided that once aerial facilities are converted to
901 underground facilities, any such collocation or construction
902 shall be only as provided by the municipality’s underground
903 utilities ordinance.
904 (q) This subsection does not authorize a person to
905 collocate small wireless facilities or micro wireless facilities
906 on an authority utility pole or erect a wireless support
907 structure in a location subject to covenants, conditions,
908 restrictions, articles of incorporation, and bylaws of a
909 homeowners’ association. This paragraph does not apply to the
910 installation, placement, maintenance, or replacement of micro
911 wireless facilities on any existing and duly authorized aerial
912 communications facilities.
913 (r) An authority may require wireless providers to comply
914 with objective design standards adopted by ordinance. The
915 ordinance may only require:
916 1. A new utility pole that replaces an existing utility
917 pole to be of substantially similar design, material, and color;
918 2. Reasonable spacing requirements concerning the location
919 of a ground-mounted component of a small wireless facility which
920 does not exceed 15 feet from the associated support structure;
921 or
922 3. A small wireless facility to meet reasonable location
923 context, color, camouflage, and concealment requirements,
924 subject to the limitations in this subsection; and
925 4. A new utility pole used to support a small wireless
926 facility to meet reasonable location context, color, and
927 material of the predominant utility pole type at the proposed
928 location of the new utility pole.
929
930 Such design standards under this paragraph may be waived by the
931 authority upon a showing that the design standards are not
932 reasonably compatible for the particular location of a small
933 wireless facility or utility pole or are technically infeasible
934 or that the design standards impose an excessive expense. The
935 waiver must be granted or denied within 45 days after the date
936 of the request.
937 (8)(a) Any person aggrieved by a violation of this section
938 may bring a civil action in a United States District Court or in
939 any other court of competent jurisdiction.
940 (b) The court may:
941 1. Grant temporary or permanent injunctions on terms as it
942 may deem reasonable to prevent or restrain violations of this
943 section; and
944 2. Direct the recovery of full costs, including awarding
945 reasonable attorney fees, to the party who prevails.
946 (9) All work in the authority’s rights-of-way under this
947 section must comply with the 2017 edition of the Florida
948 Department of Transportation Utility Accommodation Manual.
949 Section 2. This act shall take effect July 1, 2020.