Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1944
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LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/20/2021 .
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The Committee on Appropriations (Albritton) recommended the
following:
1 Senate Substitute for Amendment (529128) (with title
2 amendment)
3
4 Delete everything after the enacting clause
5 and insert:
6 Section 1. Paragraph (g) is added to subsection (13) of
7 section 120.80, Florida Statutes, to read:
8 120.80 Exceptions and special requirements; agencies.—
9 (13) FLORIDA PUBLIC SERVICE COMMISSION.—
10 (g) Rules adopted by the Florida Public Service Commission
11 to implement ss. 366.04(8) and (9) and 366.97 are not subject to
12 s. 120.541.
13 Section 2. Subsections (4) through (9) are added to section
14 366.02, Florida Statutes, to read:
15 366.02 Definitions.—As used in this chapter:
16 (4) “Attaching entity” means a person that is a local
17 exchange carrier, a public utility, a communications services
18 provider, a broadband service provider, or a cable television
19 operator that owns or controls pole attachments.
20 (5) “Communications services” has the same meaning as in s.
21 202.11(1).
22 (6) “Pole” means a pole used for electric distribution
23 service, streetlights, communications services, local exchange
24 services, or cable television services which is owned in whole
25 or in part by a pole owner. The term does not include a pole
26 used solely to support wireless communications services
27 facilities.
28 (7) “Pole attachment” means any attachment by a public
29 utility, local exchange carrier communications services
30 provider, broadband provider, or cable television operator to a
31 pole, duct, conduit, or right-of-way owned or controlled by a
32 pole owner.
33 (8) “Pole owner” means a local exchange carrier, a public
34 utility, a communications services provider, or a cable
35 television operator that owns a pole.
36 (9) “Redundant pole” means a pole owned or controlled by a
37 pole owner which is:
38 (a) Within 50 feet of a new pole that is intended to
39 replace the old pole from which some or all of the pole
40 attachments have not been removed and transferred to the new
41 pole;
42 (b) Left standing after the pole owner has relocated its
43 facilities to underground but on which pole attachments of other
44 attaching entities remain; or
45 (c) Left standing after a pole owner’s attachments have
46 been removed from that route or location to accommodate a new
47 route or design for the delivery of service.
48 Section 3. Subsections (8) and (9) are added to section
49 366.04, Florida Statutes, to read:
50 366.04 Jurisdiction of commission.—
51 (8)(a) The commission shall regulate and enforce rates,
52 charges, terms, and conditions of pole attachments, including
53 the types of attachments regulated under 47 U.S.C. s. 224(a)(4),
54 attachments to streetlight fixtures, attachments to poles owned
55 by a public utility, 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.
79 (e) The commission shall hear and resolve complaints
80 concerning rates, charges, terms, conditions, voluntary
81 agreements, or any denial of access relative to pole attachments
82 with regard to the types of attachments regulated under 47
83 U.S.C. s. 224, attachments to streetlight fixtures, or
84 attachments owned by a communications services provider. Federal
85 Communications Commission precedent is not binding upon the
86 commission in the exercise of its authority under this
87 subsection. When taking action upon such complaints, the
88 commission shall establish just and reasonable cost-based rates,
89 terms, and conditions for pole attachments and shall apply the
90 decisions and orders of the Federal Communications Commission
91 and any appellate court decisions reviewing an order of the
92 Federal Communications Commission regarding pole attachment
93 rates, terms, or conditions in determining just and reasonable
94 pole attachment rates, terms, and conditions unless a pole owner
95 or attaching entity establishes by competent substantial
96 evidence pursuant to proceedings conducted pursuant to ss.
97 120.569 and 120.57 that an alternative cost of service-based
98 pole attachment rate is appropriate and in the public interest.
99 (f) In the administration and implementation of this
100 subsection, the commission shall authorize any petitioning pole
101 owner or attaching entity to participate as an intervenor with
102 full party rights under chapter 120 in the first five formal
103 administrative proceedings conducted to determine pole
104 attachment rates under this section. These initial five
105 proceedings are intended to provide commission precedent on the
106 establishment of pole attachment rates by the commission and
107 help guide negotiations toward voluntary pole attachment
108 agreements. After the fifth such formal administrative
109 proceeding is concluded by final order, parties to subsequent
110 pole attachment rate proceedings are limited to the specific
111 pole owner and pole attaching entities involved in and directly
112 affected by the specific pole attachment rate.
113 (g) The commission shall adopt procedural rules by January
114 1, 2022, to administer and implement this subsection and, upon
115 adoption of such rules, shall provide its certification to the
116 Federal Communications Commission pursuant to 47 U.S.C. s.
117 224(c)(2).
118 (9)(a) The commission shall regulate the safety, vegetation
119 management, repair, replacement, maintenance, relocation,
120 emergency response, and storm restoration requirements for poles
121 of communication services providers. This subsection does not
122 apply to a communications services provider that owns no poles.
123 (b) The commission shall adopt rules by April 1, 2022, to
124 administer and implement this subsection, including, but not
125 limited to:
126 1. Mandatory pole inspections, including repair or
127 replacement; vegetation management requirements for poles owned
128 by providers of communications services; and
129 2. Monetary penalties to be imposed upon any communications
130 services provider that fails to comply with any such rule of the
131 commission. Monetary penalties imposed by the commission must be
132 consistent with s. 366.095.
133 (c) The commission may access the books and records of
134 communications services providers to the limited extent
135 necessary to perform its functions and to exercise its authority
136 under subsection (8), this subsection, and s. 366.97(4). Upon
137 request by a communications services provider, any records that
138 are shown and found to be proprietary confidential business
139 information that is confidential or exempt from disclosure under
140 s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution
141 which are received by the commission under this paragraph shall
142 retain their confidential or exempt status when held by the
143 commission.
144 Section 4. Section 366.97, Florida Statutes, is created to
145 read:
146 366.97 Redundant poles; transfer of ownership.—
147 (1) The commission by rule shall determine a process by
148 which pole owners shall provide at least 180 calendar days’
149 electronic or written advance notice to affected attaching
150 entities of major hardening projects the purpose of which is to
151 replace poles to ensure the poles meet extreme wind loading
152 requirements. The advance hardening project notice must include:
153 (a) The scope of the major hardening project, to the extent
154 determined, the locations of the affected poles, the expected
155 start date, and the expected completion date of the major
156 hardening project; and
157 (b) The date, time, and location of a field meeting for the
158 pole owner and attaching entities to review and discuss the
159 planned major hardening project details, including the types of
160 replacement poles to be used. The field meeting must occur no
161 sooner than 15 calendar days after the date of the notice and no
162 later than 60 calendar days after the notice and, at a minimum,
163 must include sufficient information to enable the attaching
164 entity to locate the affected poles and identify the owner of
165 any facilities attached to the poles.
166 (2)(a) An attaching entity must remove its pole attachments
167 from a redundant pole within 180 calendar days after receipt of
168 an electronic or a written notice from the pole owner requesting
169 such removal. The commission shall determine by rule the
170 sufficiency of, and requirements for, such removal notice and
171 may consider the use of a joint use notification software
172 program to accomplish such removal notice.
173 (b) If an attaching entity fails to remove a pole
174 attachment pursuant to paragraph (a), except to the extent
175 excused by an event of force majeure or other good cause as
176 determined by the commission, the pole owner or its agent may
177 transfer or relocate the pole attachment to the new pole at the
178 noncompliant attaching entity’s expense. This subsection does
179 not apply to an electric utility’s pole attachments. An
180 attaching entity shall submit payment to the pole owner within
181 60 days after receipt of the pole owner’s invoice. A pole owner
182 may seek to enforce its right to payment under this paragraph in
183 circuit court and is entitled to prejudgment interest at the
184 prevailing statutory rate and reasonable attorney fees and court
185 costs. Upon receipt by the pole owner of written notice that
186 complies with the commission rule, the noncompliant attaching
187 entity shall indemnify, defend, and hold harmless the pole owner
188 and its directors, officers, agents, and employees from and
189 against all liability, except to the extent of any finding of
190 negligence or willful misconduct, including attorney fees and
191 litigation costs, arising in connection with the transfer of the
192 pole attachment from a redundant pole to a new pole by the pole
193 owner.
194 (c) If a pole attachment is no longer in use by a
195 noncompliant attaching entity, the pole owner or its agent may
196 remove the pole attachment at the noncompliant attaching
197 entity’s expense and may sell or dispose of the pole attachment,
198 except to the extent the attaching entity’s noncompliance is
199 excused by an event of force majeure or other good cause as
200 determined by the commission. An attaching entity shall submit
201 payment to the pole owner within 60 days after receipt of the
202 pole owner’s invoice. A pole owner may seek to enforce its right
203 to payment under this paragraph in circuit court and is entitled
204 to prejudgment interest at the prevailing statutory rate and
205 reasonable attorney fees and court costs. Upon receipt by the
206 pole owner of written notice that complies with the commission
207 rule, the noncompliant attaching entity shall indemnify, defend,
208 and hold harmless the pole owner and its directors, officers,
209 agents, and employees from and against all liability, except to
210 the extent of any finding of negligence or willful misconduct,
211 including attorney fees and litigation costs, arising in
212 connection with the removal, transfer, sale, or disposal of the
213 pole attachments from a redundant pole by the pole owner.
214 (d) The commission may require by rule that an attaching
215 entity post security instruments in favor of pole owners in
216 amounts reasonably sufficient to cover the cost of the removal,
217 transfer, sale, or disposal of pole attachments. The rules do
218 not apply to existing agreements between the pole owners and the
219 attaching entity if the agreement expressly provides for, or
220 disclaims, security requirements.
221 (3) Upon petition by a pole owner, the commission may issue
222 orders requiring the removal or transfer of pole attachments by
223 noncompliant attaching entities.
224 (4) This section may not be construed to do any of the
225 following:
226 (a) Prevent a party at any time from entering into a
227 voluntary agreement authorizing a pole owner to remove an
228 attaching entity’s pole attachment. It is the intent of the
229 Legislature to encourage parties to enter into such voluntary
230 agreements without commission approval.
231 (b) Impair the contract rights of a party to a valid pole
232 attachment agreement in existence before the effective date of
233 this act.
234 (5) The commission shall adopt rules by April 1, 2022, to
235 implement this section, including rules providing for the timely
236 and coordinated removal of all pole attachments from redundant
237 poles and establishing monetary penalties to be imposed against
238 any entity in violation of this section.
239 Section 5. The Division of Law Revision is directed to
240 replace the phrase “the effective date of this act” wherever it
241 occurs in this act with the date this act becomes a law.
242 Section 6. This act shall take effect upon becoming a law.
243
244 ================= T I T L E A M E N D M E N T ================
245 And the title is amended as follows:
246 Delete everything before the enacting clause
247 and insert:
248 A bill to be entitled
249 An act relating to utility and communications poles;
250 amending s. 120.80, F.S.; exempting certain rules
251 adopted by the Public Service Commission from
252 legislative ratification requirements; amending s.
253 366.02, F.S.; defining terms; amending s. 366.04,
254 F.S.; requiring the commission to regulate and enforce
255 rates, charges, terms, and conditions for pole
256 attachments under certain circumstances; providing
257 requirements for such rules; providing construction;
258 providing situations under which a pole owner may deny
259 access to the owner’s pole on a nondiscriminatory
260 basis; requiring the commission to hear and resolve
261 complaints concerning rates, charges, terms,
262 conditions, voluntary agreements, and denial of access
263 relative to pole attachments; requiring the commission
264 to establish cost-based rates and charges for pole
265 attachments and apply certain decisions and orders of
266 the Federal Communications Commission; requiring the
267 commission to authorize certain parties to participate
268 as an intervenor in a specified number of
269 administrative proceedings; requiring the commission
270 to adopt rules by a specified date and provide
271 certification to the Federal Communications Commission
272 upon such adoption; requiring the commission to
273 regulate the safety, vegetation management, repair,
274 replacement, maintenance, relocation, emergency
275 response, and storm restoration requirements for poles
276 of communications services providers; providing an
277 exception; requiring the commission to adopt rules,
278 including monetary penalties, by a specified date;
279 authorizing the commission to access the books and
280 records of communications services providers for
281 specified purposes; providing that such information
282 that contains proprietary confidential business
283 information retains its confidential or exempt status
284 when held by the commission; creating s. 366.97, F.S.;
285 requiring the commission by rule to create a process
286 requiring advance hardening project notice; requiring
287 attaching entities to remove pole attachments from
288 redundant poles within a specified timeframe after
289 receipt of electronic or written notice from the pole
290 owner; requiring the commission to provide the form
291 and requirements for such notice by rule; authorizing
292 a pole owner or its agent to transfer or relocate pole
293 attachments of an attaching entity at the entity’s
294 expense under certain circumstances; providing an
295 exception; requiring attaching entities to submit
296 payment within a specified timeframe; authorizing pole
297 owners to seek enforcement of such payment; requiring
298 that the pole owner and its directors, officers,
299 agents, and employees be held harmless under certain
300 circumstances for such actions; authorizing a pole
301 owner to remove and sell or dispose of certain
302 abandoned pole attachments; authorizing the commission
303 to require attaching entities to post certain security
304 instruments by rule; authorizing the commission to
305 issue orders for the removal or transfer of pole
306 attachments by noncompliant attaching entities upon
307 petition by a pole owner; providing construction;
308 requiring the commission to adopt rules by a specified
309 date; providing a directive to the Division of Law
310 Revision; providing an effective date.