Florida Senate - 2021 COMMITTEE AMENDMENT Bill No. SB 1592 Ì129940-Î129940 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/01/2021 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Finance and Tax (Burgess) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete lines 141 - 279 4 and insert: 5 existed on July 1, 2021, except as authorized by this section 6 and agreed to by the parties. 7 (2) As used in this section, the term: 8 (a) “Attachment” means a wire or cable affixed to a utility 9 pole or structure in the communications space or in a duct, 10 conduit, or right-of-way owned or controlled by a municipal 11 electric utility. 12 (b) “Broadband provider” means a person who provides fixed, 13 terrestrial broadband service. The term includes a person who 14 provides or offers additional services to the public in addition 15 to broadband service. 16 (c) “Broadband service” means a service that provides high 17 speed access to the Internet at a rate of at least 25 megabits 18 per second in the downstream direction and at least 3 megabits 19 per second in the upstream direction. 20 (d) “Communications space” means the lower usable space on 21 a utility pole which is typically reserved for low-voltage 22 communications equipment. 23 (e) “Complex make-ready work” means transfers and work 24 within the communications space which would be reasonably likely 25 to cause a service outage or facility damage, including work 26 such as splicing of any communication attachment or relocation 27 of existing wireless attachments. The term includes any and all 28 wireless activities, including those involving mobile, fixed, 29 and point-to-point wireless communications and wireless service 30 providers, and any work involving the space above the safety 31 space as defined in the National Electrical Safety Code. 32 (f) “Larger order” means a pole attachment application 33 requesting access to a number of poles greater than the lesser 34 of 300 poles or 0.5 percent of a municipal electric utility’s 35 poles, and up to the lesser of 3,000 poles or 5 percent of the 36 municipal electric utility’s poles. For purposes of determining 37 whether a request is a larger order, a municipal electric 38 utility may treat multiple requests from a single new attacher 39 as one request when the requests are filed within 30 days of one 40 another. 41 (g) “Make-ready work” means engineering or construction 42 activities necessary to make a pole or similar structure 43 available for a new pole attachment or pole attachment 44 modification, including, but not limited to, rearrangement, 45 removal, and replacement of the pole, transfers, and other work 46 incident thereto. 47 (h) “Redundant pole” means a utility pole designated for 48 removal from which the municipal electric utility has removed 49 its facilities and provided written notice to the broadband 50 service provider that the provider needs to remove its 51 facilities. 52 (i) “Simple make-ready work” means work in the 53 communications space to accommodate a new pole attachment on a 54 pole which can be conducted without any reasonable expectation 55 of a: 56 1. Service outage or facility damage; 57 2. Need to splice an existing communications attachment; or 58 3. Need to relocate an existing wireless attachment. 59 (j) “Utility pole” means a pole owned or controlled by a 60 municipal electric utility which is used in whole or in part for 61 electric distribution. 62 (3) To promote the deployment of broadband service to all 63 residents, each municipal electric utility shall: 64 (a) Charge just, reasonable, and nondiscriminatory rates 65 for access to any utility pole it owns or operates which do not 66 discriminate between or among such providers and any other 67 attaching entity, including any entity affiliated with the 68 municipal electric utility, regardless of the services 69 furnished. Except as provided in subsection (4), such rates may 70 not exceed the rate calculated consistent with 47 U.S.C. 224(d) 71 and any Federal Communications Commission regulations and 72 decisions adopted thereunder as such regulations and decisions 73 existed on July 1, 2021. 74 (b) Maintain and make available to a broadband provider all 75 records necessary to calculate the rate it charges to the 76 provider in accordance with paragraph (a). 77 (c) Provide broadband providers with access to any utility 78 pole it owns or operates and adopt just, reasonable, and 79 nondiscriminatory terms and conditions for such access 80 consistent with the requirements applicable to investor-owned 81 utilities under 47 U.S.C. s. 224 and any Federal Communications 82 Commission regulations and decisions adopted thereunder, as such 83 regulations and decisions existed on July 1, 2021, except as 84 otherwise provided in this section and agreed to by the parties. 85 Notwithstanding the foregoing: 86 1. If necessary to accommodate a broadband provider’s new 87 attachment, the municipal electric utility shall rearrange, 88 expand, replace, or otherwise safely reengineer any utility pole 89 upon the request of the broadband provider. 90 2. If the municipal electric utility is required to replace 91 a utility pole pursuant to subparagraph 1., the municipal 92 electric utility may require a broadband provider to reimburse 93 reasonable costs attributable solely to the new attachment. 94 Broadband providers may not be required to pay for the cost of 95 utility betterment or for costs attributable to preexisting 96 noncompliance. 97 (4) A municipal electric utility may require a broadband 98 provider to enter into a pole attachment agreement to attach to 99 a utility pole the municipal electric utility owns or operates, 100 and the parties shall negotiate such agreements in good faith. 101 (a) Broadband providers and municipal electric utilities 102 shall negotiate in good faith to adopt pole attachment 103 agreements consistent with this section or to amend existing 104 agreements to ensure that attachments installed after July 1, 105 2021, are performed consistent with the terms of this section. 106 The parties must negotiate in good faith for at least 60 days 107 after receipt of a written request, after which either party may 108 petition the circuit court to determine rates, terms, and 109 conditions for the agreements consistent with this section. 110 (b) A municipal utility may not require a broadband 111 provider to comply with any utility pole attachment 112 specifications except as provided in this section. 113 1. A municipal electric utility may adopt publicly 114 available, reasonable, and nondiscriminatory safety and 115 engineering standards for the protection of public health, 116 safety, or welfare applicable to attachments to the municipal 117 electric utility’s poles. 118 2. Safety and engineering standards adopted pursuant to 119 this section may not exceed the specifications in the National 120 Electrical Safety Code, applicable fire safety codes, or any 121 building code or publicly available, reasonable, and 122 nondiscriminatory municipal electric utility safety and 123 engineering standards for the protection of public health, 124 safety, or welfare adopted before the broadband provider filed a 125 utility pole attachment application. 126 (5) If a broadband provider does not request to use one 127 touch, make-ready procedures pursuant to subsection (6), or if 128 such procedures are unavailable due to the nature of the make 129 ready work required to accommodate a broadband provider’s 130 attachment, a municipal electric utility and broadband provider 131 shall conduct the pole access process as provided under this 132 subsection. 133 (a) An application is deemed complete if the municipal 134 electric utility does not respond within 10 business days or if 135 the response does not specify any reasons why the application is 136 incomplete. Preconstruction surveys and engineering must be 137 completed within 45 days or within 60 days for larger orders. 138 (b) If a municipal electric utility grants a pole 139 attachment application that requires make-ready work, the 140 municipal electric utility shall identify any make-ready work 141 necessary to accommodate the proposed pole attachment, on a 142 pole-by-pole basis if requested, along with a cost estimate, 143 within 15 days after the date of approval of the pole attachment 144 application. A municipal electric utility may withdraw an 145 outstanding estimate beginning 15 days after the estimate is 146 presented except that such time must be tolled during any good 147 faith negotiation concerning the estimate cost or timing. 148 (c) Upon receipt of payment of the estimate, a municipal 149 electric utility shall immediately notify in writing all known 150 entities with existing attachments which may be affected by the 151 make-ready work. 152 (d)1. Except as provided in paragraph (e), make-ready work 153 must be commenced within 20 business days after the date the 154 applicant made payment for the make-ready work estimate, and 155 must be completed in a timely manner, at a reasonable cost, and 156 as reasonably practicable, but not later than: 157 a. For applications requesting attachment to the lesser of 158 300 poles or 0.5 percent of the electric utility’s poles in any 159 30-day period, 30 days or 90 days for attachments above the 160 communications space. 161 b. For larger orders, 75 days or 105 days for attachments 162 above the safety space. 163 2. If an application seeks attachment to a number of poles 164 exceeding a larger order, the parties shall negotiate a 165 reasonable timeframe for completion of the make-ready work 166 covered by the application. 167 (e) A municipal electric utility may deviate from the 168 timelines set forth in paragraph (d) if the parties otherwise 169 agree in their pole attachment agreement, or for good and 170 sufficient cause that renders it infeasible to complete the 171 make-ready work within the time limits set forth in this 172 section, including incidents of natural disasters and 173 emergencies. 174 (f) If a municipal electric utility or any existing 175 attachers fail to complete a survey necessary to the review of 176 an application or to complete make-ready work within the times 177 specified in this section, a broadband provider may hire a 178 contractor to perform such survey or make-ready work. 179 (g) A new attacher shall provide the affected municipal 180 electric utility and existing attachers with advance notice of 181 not less than 5 days of the impending make-ready work and within 182 15 days after completion of make-ready work on a particular 183 pole. The municipal electric utility and affected existing 184 attachers shall inspect the make-ready work within 90 days after 185 receipt of notice. 186 (h) The new attacher shall notify an affected utility or 187 existing attacher immediately if make-ready work damages the 188 equipment of a utility or an existing attacher or causes an 189 outage that is reasonably likely to interrupt the service of a 190 utility or an existing attacher. Upon notice or discovery of 191 damage or noncompliance caused by the new attacher, the utility 192 or existing attacher may either: 193 1. Complete any necessary remedial work and bill the new 194 attacher for the reasonable costs related to fixing the damage; 195 or 196 2. Require the new attacher to fix the damage at its 197 expense immediately following notice from the utility or 198 existing attacher. 199 (6) A broadband provider seeking a new pole attachment may 200 elect to invoke the Florida one-touch, make-ready (FOTMR) 201 process pursuant to this subsection. 202 (a) Any FOTMR pole attachment application must identify the 203 make-ready work to be performed and must state that the make 204 ready work required for every utility pole in the application 205 does not require anything more than simple make-ready work. It 206 is the responsibility of the broadband provider to ensure that 207 the make-ready work requested in an attachment application is 208 simple make-ready work and not complex make-ready work. 209 (b) A municipal electric utility shall review a new FOTMR 210 pole attachment application for completeness. An application is 211 deemed complete if the municipal electric utility does not 212 respond within 10 business days after receipt of the application 213 or if the response does not specify any reasons why the 214 application is incomplete. 215 (c) A municipal electric utility shall review a completed 216 application requesting FOTMR and respond to the applicant either 217 granting or denying an application within 15 days after the 218 municipal electric utility’s receipt of a complete application 219 or 30 days after for a larger order. 220 (d) The municipal electric utility or an existing attacher 221 may object in writing to the applicant’s designation that 222 certain aspects of the work required is simple make-ready work. 223 If the municipal electric utility or existing attacher 224 reasonably objects, then the work is deemed complex make-ready 225 work and the FOTMR process is not available to the broadband 226 provider and the application must be processed under the 227 standard make-ready provisions. 228 (e) The new attacher is responsible for coordinating all 229 surveys as part of the FOTMR process and shall use a qualified 230 contractor as set forth in this section. The new attacher shall 231 make commercially reasonable efforts to provide at least 3 232 business days advance notice to the municipal electric utility 233 and existing attachers to allow them to be present for any 234 surveys performed in advance of the FOTMR application. 235 (f) If the new attacher’s application is approved and if it 236 has provided 15 days prior written notice of the date, time and 237 nature of the make-ready work to the affected municipal electric 238 utility and existing attaching entities, the new attacher may 239 proceed with the make-ready work using a qualified contractor. 240 (g) The new attacher shall notify any affected municipal 241 electric utility or existing attaching entity immediately if the 242 make-ready work performed damages any equipment or facilities of 243 the municipal electric utility or of an existing attaching 244 entity. Upon receiving notice from the applicant, the municipal 245 electric utility or existing attaching entity may each make the 246 decision to: 247 1. Complete any necessary remedial work and bill the 248 applicant for the actual costs incurred related to fixing the 249 damage or outage; or 250 2. Require the applicant to fix the damage or outage at its 251 expense immediately following the notice from the municipal 252 electric utility or any existing attacher. 253 (h) The new attacher shall notify the municipal electric 254 utility and existing attachers within 15 days after the make 255 ready work is completed on a particular pole, and the municipal 256 electric utility and existing attachers shall have 90 days after 257 receipt of the notice to inspect the make-ready work at the new 258 attacher’s cost. The municipal electric utility and existing 259 attaching entities may complete any necessary remedial work and 260 bill the applicant for the actual cost incurred or require the 261 applicant the fix the damage or code violations at its expense 262 within 14 days after notice from the pole owner or existing 263 attaching entity. 264 (7)(a) A municipal electric utility may make periodic 265 inspections of a broadband provider’s attachments, using its own 266 employees or contractors, and such broadband provider shall 267 reimburse the municipal electric utility for the actual and 268 reasonable expense of such inspections, but only for the costs 269 of inspecting the poles on which the broadband provider is found 270 to be in violation of the National Electrical Safety Code or 271 publicly available, reasonable, and nondiscriminatory municipal 272 electric utility safety and engineering standards for the 273 protection of public health, safety, or welfare permitted by 274 this section. 275 (b) No more frequently than once every 5 years, a municipal 276 electric utility may conduct an audit of a broadband provider’s 277 attachments, with the reasonable cost of the audit of the 278 broadband provider’s attachments to be borne by the broadband 279 provider. If the results of the pole audit show attachments to 280 poles by the broadband service provider not previously 281 authorized by the municipal electric utility, such poles must be 282 added to the next annual rent invoice and the municipal electric 283 utility may require the broadband service provider to pay up to 284 5 years’ back rent for attachments to all such poles not 285 previously authorized as required by the agreement in effect at 286 the time of the attachment. 287 (c) The municipal electric utility shall give a broadband 288 provider reasonable advance written notice of such audits or 289 inspections, except in those instances where safety 290 considerations justify the need for such inspection without the 291 delay of waiting until written notice has been received. 292 (8) If a municipal electric utility pole owner and any 293 attacher cannot reach an agreement or have a dispute related to 294 facilities attached to a redundant pole: 295 (a) A broadband service provider must remove its pole 296 attachments from a redundant pole within 120 calendar days after 297 receipt of written or electronic notice consistent with industry 298 standards from the pole owner requesting such removal which 299 notice includes the pole number, physical address, and GIS 300 coordinates of such pole. 301 (b) If a broadband service provider fails to remove a pole 302 attachment pursuant to paragraph (a), except to the extent 303 excused by an event of force majeure or other good cause, the 304 pole owner or its agent may transfer or relocate the pole 305 attachment to a new pole at the noncompliant attaching entity’s 306 expense or, if no new pole exists because the municipal electric 307 utility has relocated its facilities underground, remove the 308 pole attachment and store the attached facility for 60 days. 309 (c) The broadband service provider shall indemnify, defend, 310 and hold harmless the pole owner and its directors, officers, 311 agents, and employees from and against all liability for direct 312 damage and personal injury caused by the removal, transfer, 313 sale, or disposal of the pole attachments from a redundant pole 314 by the pole owner except to the extent of the municipal electric 315 utility’s negligence or willful misconduct. 316 (9) Municipal electric utilities may not charge additional 317 rent or require prior approval or applications for a broadband 318 provider that overlashes its existing wires on a pole. Municipal 319 electric utilities may require up to 15 days’ advance notice of 320 planned overlashing. A party that engages in overlashing is 321 responsible for its own equipment and shall ensure that it 322 complies with National Electrical Safety Code and publicly 323 available, reasonable, and nondiscriminatory municipal electric 324 utility safety and engineering standards for the protection of 325 public health, safety, or welfare permitted by this section. 326 (10) Municipal electric utilities and broadband providers 327 are responsible for their own costs related to utility poles and 328 attachments, except as specifically provided herein. Any costs 329 billed in connection with pole attachments must be commercially 330 reasonable and nondiscriminatory, and must include sufficient 331 detail to enable the billed party to verify the accuracy and 332 reasonableness of the costs. A municipal electric utility that 333 provides broadband shall impute to itself the costs of providing 334 such services, and charge any affiliate, subsidiary, or 335 associate company engaged in the provision of such services, an 336 equal amount to the pole attachment rate for which such company 337 would be liable under this section. 338 (11) A municipal electric utility or broadband provider may 339 seek any available remedies at law or equity for violations of 340 this section. In all cases involving this section, and to the 341 extent not otherwise provided by this section, the court shall 342 give effect to the provisions and intent of 47 U.S.C. s. 224 and 343 any Federal Communications Commission rules, regulations, or 344 decisions adopted thereunder, as such existed on July 1, 2021, 345 or as authorized by this section. 346 347 ================= T I T L E A M E N D M E N T ================ 348 And the title is amended as follows: 349 Delete lines 12 - 30 350 and insert: 351 records available to broadband providers, provide 352 access to its utility poles, and establish just and 353 reasonable terms and conditions for broadband provider 354 attachments; providing a process for a municipal 355 electric utility and a broadband provider to enter 356 into pole attachment agreements; prohibiting municipal 357 electric utilities from prohibiting a broadband 358 provider from using certain techniques and equipment 359 if used in accordance with certain safety standards; 360 providing an application process and timelines for 361 pole access between a municipal electric utility and a 362 broadband provider; authorizing a broadband provider 363 seeking a new pole attachment to invoke the Florida 364 one-touch, make-ready process; providing requirements 365 for such process; authorizing a municipal electric 366 utility to make periodic inspections of a broadband 367 provider’s attachments; requiring the broadband 368 provider to reimburse the municipal electric utility 369 for certain costs relating to such inspections; 370 authorizing a municipal electric utility to conduct 371 audits of such attachments according to a specified 372 timeframe; requiring advanced written notice of such 373 inspections or audits; providing for the removal of 374 pole attachments within a specified timeframe upon 375 unresolved disputes; prohibiting a municipal electric 376 utility from charging additional rent or requiring 377 prior approval or applications for overlashes; 378 requiring any billed costs to be commercially 379 reasonable, nondiscriminatory, and sufficiently 380 detailed; authorizing