Florida Senate - 2021 COMMITTEE AMENDMENT Bill No. SB 1944 Ì820550uÎ820550 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/20/2021 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— 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.