Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1944
Ì5291287Î529128
LEGISLATIVE ACTION
Senate . House
Comm: RS .
04/20/2021 .
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The Committee on Appropriations (Albritton) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (g) is added to subsection (13) of
6 section 120.80, Florida Statutes, to read:
7 120.80 Exceptions and special requirements; agencies.—
8 (13) FLORIDA PUBLIC SERVICE COMMISSION.—
9 (g) Rules adopted by the Florida Public Service Commission
10 to implement ss. 366.04(8) and (9) and 366.97 are not subject to
11 s. 120.541.
12 Section 2. Subsections (4) through (9) are added to section
13 366.02, Florida Statutes, to read:
14 366.02 Definitions.—As used in this chapter:
15 (4) “Attaching entity” means a person that is a local
16 exchange carrier, a public utility, a communications services
17 provider, a broadband service provider, or a cable television
18 operator that owns or controls pole attachments.
19 (5) “Communications services” has the same meaning as in s.
20 202.11(1).
21 (6) “Pole” means a pole used for electric distribution
22 service, streetlights, communications services, local exchange
23 services, or cable television services which is owned in whole
24 or in part by a pole owner. The term does not include a pole
25 used solely to support wireless communications services
26 facilities.
27 (7) “Pole attachment” means any attachment by a public
28 utility, local exchange carrier communications services
29 provider, broadband provider, or cable television operator to a
30 pole, duct, conduit, or right-of-way owned or controlled by a
31 pole owner.
32 (8) “Pole owner” means a local exchange carrier, a public
33 utility, a communications services provider, or a cable
34 television operator that owns a pole.
35 (9) “Redundant pole” means a pole owned or controlled by a
36 pole owner which is:
37 (a) Within 50 feet of a new pole that is intended to
38 replace the old pole from which some or all of the pole
39 attachments have not been removed and transferred to the new
40 pole;
41 (b) Left standing after the pole owner has relocated its
42 facilities to underground but on which pole attachments of other
43 attaching entities remain; or
44 (c) Left standing after a pole owner’s attachments have
45 been removed from that route or location to accommodate a new
46 route or design for the delivery of service.
47 Section 3. Subsections (8) and (9) are added to section
48 366.04, Florida Statutes, to read:
49 366.04 Jurisdiction of commission.—
50 (8)(a) The commission shall regulate and enforce rates,
51 charges, terms, and conditions for pole attachments in
52 situations in which a pole owner is unable to reach an agreement
53 with a party seeking pole attachments, including the types of
54 attachments regulated under 47 U.S.C. s. 224(a)(4), attachments
55 to streetlight fixtures, or attachments to poles owned by a
56 communications services provider, to ensure that such rates,
57 charges, terms, and conditions are just and reasonable. The
58 commission’s authority under this subsection includes, but is
59 not limited to, the state regulatory authority referenced in 47
60 U.S.C. s. 224(c).
61 (b) In developing such rules, the commission shall consider
62 the interests of the subscribers and users of the services
63 offered through such pole attachments, as well as the interests
64 of the consumers of any pole owner providing such attachments.
65 (c) It is the intent of the Legislature to encourage
66 parties to enter into voluntary pole attachment agreements, and
67 this subsection may not be construed to prevent parties from
68 voluntarily entering into pole attachment agreements without
69 commission approval.
70 (d) A party’s right to nondiscriminatory access to a pole
71 under this subsection is identical to the rights afforded under
72 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its
73 poles on a nondiscriminatory basis when there is insufficient
74 capacity, for reasons of safety and reliability, and when
75 required by generally applicable engineering purposes. A pole
76 owner’s evaluation of capacity, safety, reliability, and
77 engineering requirements must consider relevant construction and
78 reliability standards approved by the commission and may include
79 an evaluation of the financial and performance-related
80 capabilities of the entity requesting attachment.
81 (e) The commission shall hear and resolve complaints
82 concerning rates, charges, terms, conditions, voluntary
83 agreements, or any denial of access relative to pole attachments
84 with regard to the types of attachments regulated under 47
85 U.S.C. s. 224, attachments to streetlight fixtures, or
86 attachments owned by a communications services provider. Federal
87 Communications Commission precedent is not binding upon the
88 commission in the exercise of its authority under this
89 subsection. The commission shall establish cost-based rates and
90 charges for pole attachments and shall apply the decisions and
91 orders of the Federal Communications Commission in determining
92 pole attachment rates unless a pole owner or attaching entity
93 establishes by competent substantial evidence pursuant to
94 proceedings conducted pursuant to ss. 120.569 and 120.57 that an
95 alternative cost of service-based pole attachment rate is
96 appropriate and in the public interest.
97 (f) Upon commencement of its authority under this
98 subsection, the commission, upon the request of a party to a
99 complaint proceeding pending before the Federal Communications
100 Commission, shall assume jurisdiction over the matter if it is
101 not yet subject to a final order of the Federal Communications
102 Commission at the time of the request.
103 (g) The commission shall adopt rules by January 1, 2022, to
104 administer and implement this subsection, including one or more
105 appropriate formulae for apportioning costs, and shall, upon
106 adoption of such rules, provide its certification to the Federal
107 Communications Commission pursuant to 47 U.S.C. s. 224(c)(2).
108 (9)(a) The commission shall regulate the safety, vegetation
109 management, repair, replacement, maintenance, relocation,
110 emergency response, and storm restoration requirements for
111 poles, conduits, ducts, pipes, pole attachments, wires, cables,
112 and related plants and equipment of communication services
113 providers. This paragraph does not apply to a communications
114 services provider that owns no poles.
115 (b) The commission shall adopt rules by April 1, 2022, to
116 administer and implement this subsection, including, but not
117 limited to:
118 1. Mandatory pole inspections, including repair or
119 replacement; vegetation management requirements for poles owned
120 by providers of communications services; and the timely removal
121 of pole attachments; and
122 2. Monetary penalties to be imposed upon any communications
123 services provider that fails to comply with any such rule of the
124 commission.
125 (c) The commission may access the books and records of
126 communications services providers to the limited extent
127 necessary to perform its functions and to exercise its authority
128 under subsection (8), this subsection, and s. 366.97(4). Upon
129 request by a communications services provider, any records that
130 are shown and found to be proprietary confidential business
131 information that is confidential or exempt from disclosure under
132 s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution
133 which are received by the commission under this paragraph shall
134 retain their confidential or exempt status when held by the
135 commission.
136 Section 4. Section 366.97, Florida Statutes, is created to
137 read:
138 366.97 Redundant poles; transfer of ownership; penalties.—
139 (1) The Legislature finds that:
140 (a) It is in the public interest for public utilities,
141 communications services providers, and cable television
142 operators that own poles to harden their infrastructure to
143 strengthen the ability of their above-ground infrastructure to
144 withstand extreme weather conditions by, among other things,
145 replacing older poles with newer, stronger poles; however, this
146 work combined with the undergrounding of electrical facilities
147 may result in redundant poles within public rights-of-way and
148 easements for significant durations because owners of third
149 party pole attachments may not keep pace in removing their
150 facilities from the old poles.
151 (b) Pole owners that set new poles are prevented from
152 removing redundant poles when the pole attachments of other
153 entities remain on the old poles.
154 (c) Redundant poles in the public rights-of-way and
155 easements are aesthetically unappealing and potentially create
156 overcrowding of, and unsafe conditions in, the public rights-of
157 way and easements.
158 (d) It is in the public interest to timely remove pole
159 attachments from redundant poles.
160 (2) The commission by rule shall determine a process by
161 which pole owners shall provide at least 180 calendar days’
162 electronic or written advance notice to affected attaching
163 entities of major hardening projects the purpose of which is to
164 replace poles to ensure the poles meet extreme wind loading
165 requirements. The advance hardening project notice must include:
166 (a) The scope of the major hardening project, to the extent
167 determined, the locations of the affected poles, the expected
168 start date, and the expected completion date of the major
169 hardening project; and
170 (b) The date, time, and location of a field meeting for the
171 pole owner and attaching entities to review and discuss the
172 planned major hardening project details, including the types of
173 replacement poles to be used. The field meeting must occur no
174 sooner than 15 calendar days after the date of the notice and no
175 later than 45 calendar days after the notice.
176 (3)(a) An attaching entity must remove its pole attachments
177 from a redundant pole within 180 calendar days after receipt of
178 an electronic or a written notice from the pole owner requesting
179 such removal. The commission shall determine by rule the
180 sufficiency of, and requirements for, such removal notice and
181 may consider the use of a joint use notification software
182 program to accomplish such removal notice.
183 (b) If an attaching entity fails to remove a pole
184 attachment pursuant to paragraph (a), except to the extent
185 excused by an event of force majeure or other good cause as
186 determined by the commission, the pole owner or its agent may
187 transfer or relocate the pole attachment to the new pole at the
188 noncompliant attaching entity’s expense. This subsection does
189 not apply to an electric utility’s pole attachments. The
190 noncompliant attaching entity shall indemnify, defend, and hold
191 harmless the pole owner and its directors, officers, agents, and
192 employees from and against all liability, except to the extent
193 of any finding of gross negligence or willful misconduct,
194 including attorney fees and litigation costs, arising in
195 connection with the transfer of the pole attachment from a
196 redundant pole to a new pole by the pole owner.
197 (c) If a pole attachment is no longer in use by a
198 noncompliant attaching entity, the pole owner or its agent may
199 remove the pole attachment at the noncompliant attaching
200 entity’s expense and may sell or dispose of the pole attachment,
201 except to the extent the attaching entity’s noncompliance is
202 excused by an event of force majeure or other good cause as
203 determined by the commission. The noncompliant attaching entity
204 shall indemnify, defend, and hold harmless the pole owner and
205 its directors, officers, agents, and employees from and against
206 all liability, except to the extent of any finding of gross
207 negligence or willful misconduct, including attorney fees and
208 litigation costs, arising in connection with the removal,
209 transfer, sale, or disposal of the pole attachments from a
210 redundant pole by the pole owner.
211 (d) The commission may require by rule that an attaching
212 entity post security instruments in favor of pole owners in
213 amounts reasonably sufficient to cover the cost of the removal,
214 transfer, sale, or disposal of pole attachments.
215 (4) The commission shall impose monetary penalties upon any
216 entity subject to its jurisdiction which is found to be in
217 violation of this section. Upon petition by a pole owner, the
218 commission may issue orders requiring the removal or transfer of
219 pole attachments by noncompliant attaching entities and shall
220 impose monetary penalties in accordance with this section.
221 (5) All monetary penalties assessed by the commission
222 pursuant to this section must be used by the commission to
223 provide grants for the installing and upgrading of broadband
224 infrastructure in unserved and underserved rural and low-income
225 areas of this state. The commission shall establish criteria for
226 the award of grants from the fund to businesses and
227 organizations that have demonstrated the ability to construct
228 and install infrastructure and that have submitted an
229 application and proposal detailing how the grant funds would
230 further the objectives of this subsection to expand broadband
231 services in unserved and underserved areas. The commission may
232 disburse monies from the fund to grant recipients selected by
233 the commission in accordance with its criteria.
234 (6) This section may not be construed to do any of the
235 following:
236 (a) Prevent a party at any time from entering into a
237 voluntary agreement authorizing a pole owner to remove an
238 attaching entity’s pole attachment. It is the intent of the
239 Legislature to encourage parties to enter into such voluntary
240 agreements without commission approval.
241 (b) Impair the contract rights of a party to a valid pole
242 attachment agreement in existence before the effective date of
243 this act.
244 (7) The commission shall adopt rules by April 1, 2022, to
245 implement this section, including rules providing for the timely
246 and coordinated removal of all pole attachments from redundant
247 poles and establishing monetary penalties to be imposed against
248 any entity in violation of this section.
249 Section 5. The Division of Law Revision is directed to
250 replace the phrase “the effective date of this act” wherever it
251 occurs in this act with the date this act becomes a law.
252 Section 6. This act shall take effect upon becoming a law.
253
254 ================= T I T L E A M E N D M E N T ================
255 And the title is amended as follows:
256 Delete everything before the enacting clause
257 and insert:
258 A bill to be entitled
259 An act relating to utility and communications poles;
260 amending s. 120.80, F.S.; exempting certain rules
261 adopted by the Public Service Commission from
262 legislative ratification requirements; amending s.
263 366.02, F.S.; defining terms; amending s. 366.04,
264 F.S.; requiring the commission to regulate and enforce
265 rates, charges, terms, and conditions for pole
266 attachments under certain circumstances; providing
267 requirements for such rules; providing construction;
268 providing situations under which a pole owner may deny
269 access to the owner’s pole on a nondiscriminatory
270 basis; requiring the commission to hear and resolve
271 complaints concerning rates, charges, terms,
272 conditions, voluntary agreements, and denial of access
273 relative to pole attachments; requiring the commission
274 to establish cost-based rates and charges for pole
275 attachments and apply certain decisions and orders of
276 the Federal Communications Commission; requiring the
277 commission, at the request of a party, to assume
278 jurisdiction over certain complaints before the
279 Federal Communications Commission; requiring the
280 commission to adopt rules by a specified date and
281 provide certification to the Federal Communications
282 Commission upon such adoption; requiring the
283 commission to regulate the safety, vegetation
284 management, repair, replacement, maintenance,
285 relocation, emergency response, and storm restoration
286 requirements for certain plants and equipment of
287 communications services providers; providing an
288 exception; requiring the commission to adopt rules,
289 including monetary penalties, by a specified date;
290 authorizing the commission to access the books and
291 records of communications services providers for
292 specified purposes; providing that such information
293 that contains proprietary confidential business
294 information retains its confidential or exempt status
295 when held by the commission; creating s. 366.97, F.S.;
296 providing legislative findings; requiring the
297 commission by rule to create a process requiring
298 advance hardening project notice; requiring attaching
299 entities to remove pole attachments from redundant
300 poles within a specified timeframe after receipt of
301 electronic or written notice from the pole owner;
302 requiring the commission to provide the form and
303 requirements for such notice by rule; authorizing a
304 pole owner or its agent to transfer or relocate pole
305 attachments of an attaching entity at the entity’s
306 expense under certain circumstances; providing an
307 exception; requiring that the pole owner and its
308 directors, officers, agents, and employees be held
309 harmless under certain circumstances for such actions;
310 authorizing a pole owner to remove and sell or dispose
311 of certain abandoned pole attachments; authorizing the
312 commission to require attaching entities to post
313 certain security instruments by rule; requiring the
314 commission to impose monetary penalties for
315 violations; requiring the commission to provide grants
316 to construct and install broadband infrastructure in
317 this state from any monetary penalty collected;
318 providing construction; requiring the commission to
319 adopt rules by a specified date; providing a directive
320 to the Division of Law Revision; providing an
321 effective date.