Florida Senate - 2021 CS for SB 1944 By the Committee on Appropriations; and Senator Albritton 576-04469-21 20211944c1 1 A bill to be entitled 2 An act relating to utility and communications poles; 3 amending s. 120.80, F.S.; exempting certain rules 4 adopted by the Public Service Commission from 5 legislative ratification requirements; amending s. 6 366.02, F.S.; defining terms; amending s. 366.04, 7 F.S.; requiring the commission to regulate and enforce 8 rates, charges, terms, and conditions for pole 9 attachments under certain circumstances; providing 10 requirements for such rules; providing construction; 11 providing situations under which a pole owner may deny 12 access to the owner’s pole on a nondiscriminatory 13 basis; requiring the commission to hear and resolve 14 complaints concerning rates, charges, terms, 15 conditions, voluntary agreements, and denial of access 16 relative to pole attachments; requiring the commission 17 to establish cost-based rates and charges for pole 18 attachments and apply certain decisions and orders of 19 the Federal Communications Commission; requiring the 20 commission to authorize certain parties to participate 21 as an intervenor in a specified number of 22 administrative proceedings; requiring the commission 23 to adopt rules by a specified date and provide 24 certification to the Federal Communications Commission 25 upon such adoption; requiring the commission to 26 regulate the safety, vegetation management, repair, 27 replacement, maintenance, relocation, emergency 28 response, and storm restoration requirements for poles 29 of communications services providers; providing an 30 exception; requiring the commission to adopt rules, 31 including monetary penalties, by a specified date; 32 authorizing the commission to access the books and 33 records of communications services providers for 34 specified purposes; providing that such information 35 that contains proprietary confidential business 36 information retains its confidential or exempt status 37 when held by the commission; creating s. 366.97, F.S.; 38 requiring the commission by rule to create a process 39 requiring advance hardening project notice; requiring 40 attaching entities to remove pole attachments from 41 redundant poles within a specified timeframe after 42 receipt of electronic or written notice from the pole 43 owner; requiring the commission to provide the form 44 and requirements for such notice by rule; authorizing 45 a pole owner or its agent to transfer or relocate pole 46 attachments of an attaching entity at the entity’s 47 expense under certain circumstances; providing an 48 exception; requiring attaching entities to submit 49 payment within a specified timeframe; authorizing pole 50 owners to seek enforcement of such payment; requiring 51 that the pole owner and its directors, officers, 52 agents, and employees be held harmless under certain 53 circumstances for such actions; authorizing a pole 54 owner to remove and sell or dispose of certain 55 abandoned pole attachments; authorizing the commission 56 to require attaching entities to post certain security 57 instruments by rule; authorizing the commission to 58 issue orders for the removal or transfer of pole 59 attachments by noncompliant attaching entities upon 60 petition by a pole owner; providing construction; 61 requiring the commission to adopt rules by a specified 62 date; providing a directive to the Division of Law 63 Revision; providing an effective date. 64 65 Be It Enacted by the Legislature of the State of Florida: 66 67 Section 1. Paragraph (g) is added to subsection (13) of 68 section 120.80, Florida Statutes, to read: 69 120.80 Exceptions and special requirements; agencies.— 70 (13) FLORIDA PUBLIC SERVICE COMMISSION.— 71 (g) Rules adopted by the Florida Public Service Commission 72 to implement ss. 366.04(8) and (9) and 366.97 are not subject to 73 s. 120.541. 74 Section 2. Subsections (4) through (9) are added to section 75 366.02, Florida Statutes, to read: 76 366.02 Definitions.—As used in this chapter: 77 (4) “Attaching entity” means a person that is a local 78 exchange carrier, a public utility, a communications services 79 provider, a broadband service provider, or a cable television 80 operator that owns or controls pole attachments. 81 (5) “Communications services” has the same meaning as in s. 82 202.11(1). 83 (6) “Pole” means a pole used for electric distribution 84 service, streetlights, communications services, local exchange 85 services, or cable television services which is owned in whole 86 or in part by a pole owner. The term does not include a pole 87 used solely to support wireless communications services 88 facilities. 89 (7) “Pole attachment” means any attachment by a public 90 utility, local exchange carrier communications services 91 provider, broadband provider, or cable television operator to a 92 pole, duct, conduit, or right-of-way owned or controlled by a 93 pole owner. 94 (8) “Pole owner” means a local exchange carrier, a public 95 utility, a communications services provider, or a cable 96 television operator that owns a pole. 97 (9) “Redundant pole” means a pole owned or controlled by a 98 pole owner which is: 99 (a) Within 50 feet of a new pole that is intended to 100 replace the old pole from which some or all of the pole 101 attachments have not been removed and transferred to the new 102 pole; 103 (b) Left standing after the pole owner has relocated its 104 facilities to underground but on which pole attachments of other 105 attaching entities remain; or 106 (c) Left standing after a pole owner’s attachments have 107 been removed from that route or location to accommodate a new 108 route or design for the delivery of service. 109 Section 3. Subsections (8) and (9) are added to section 110 366.04, Florida Statutes, to read: 111 366.04 Jurisdiction of commission.— 112 (8)(a) The commission shall regulate and enforce rates, 113 charges, terms, and conditions of pole attachments, including 114 the types of attachments regulated under 47 U.S.C. s. 224(a)(4), 115 attachments to streetlight fixtures, attachments to poles owned 116 by a public utility, or attachments to poles owned by a 117 communications services provider, to ensure that such rates, 118 charges, terms, and conditions are just and reasonable. The 119 commission’s authority under this subsection includes, but is 120 not limited to, the state regulatory authority referenced in 47 121 U.S.C. s. 224(c). 122 (b) In developing such rules, the commission shall consider 123 the interests of the subscribers and users of the services 124 offered through such pole attachments, as well as the interests 125 of the consumers of any pole owner providing such attachments. 126 (c) It is the intent of the Legislature to encourage 127 parties to enter into voluntary pole attachment agreements, and 128 this subsection may not be construed to prevent parties from 129 voluntarily entering into pole attachment agreements without 130 commission approval. 131 (d) A party’s right to nondiscriminatory access to a pole 132 under this subsection is identical to the rights afforded under 133 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its 134 poles on a nondiscriminatory basis when there is insufficient 135 capacity, for reasons of safety and reliability, and when 136 required by generally applicable engineering purposes. A pole 137 owner’s evaluation of capacity, safety, reliability, and 138 engineering requirements must consider relevant construction and 139 reliability standards approved by the commission. 140 (e) The commission shall hear and resolve complaints 141 concerning rates, charges, terms, conditions, voluntary 142 agreements, or any denial of access relative to pole attachments 143 with regard to the types of attachments regulated under 47 144 U.S.C. s. 224, attachments to streetlight fixtures, or 145 attachments owned by a communications services provider. Federal 146 Communications Commission precedent is not binding upon the 147 commission in the exercise of its authority under this 148 subsection. When taking action upon such complaints, the 149 commission shall establish just and reasonable cost-based rates, 150 terms, and conditions for pole attachments and shall apply the 151 decisions and orders of the Federal Communications Commission 152 and any appellate court decisions reviewing an order of the 153 Federal Communications Commission regarding pole attachment 154 rates, terms, or conditions in determining just and reasonable 155 pole attachment rates, terms, and conditions unless a pole owner 156 or attaching entity establishes by competent substantial 157 evidence pursuant to proceedings conducted pursuant to ss. 158 120.569 and 120.57 that an alternative cost of service-based 159 pole attachment rate is appropriate and in the public interest. 160 (f) In the administration and implementation of this 161 subsection, the commission shall authorize any petitioning pole 162 owner or attaching entity to participate as an intervenor with 163 full party rights under chapter 120 in the first five formal 164 administrative proceedings conducted to determine pole 165 attachment rates under this section. These initial five 166 proceedings are intended to provide commission precedent on the 167 establishment of pole attachment rates by the commission and 168 help guide negotiations toward voluntary pole attachment 169 agreements. After the fifth such formal administrative 170 proceeding is concluded by final order, parties to subsequent 171 pole attachment rate proceedings are limited to the specific 172 pole owner and pole attaching entities involved in and directly 173 affected by the specific pole attachment rate. 174 (g) The commission shall adopt procedural rules by January 175 1, 2022, to administer and implement this subsection and, upon 176 adoption of such rules, shall provide its certification to the 177 Federal Communications Commission pursuant to 47 U.S.C. s. 178 224(c)(2). 179 (9)(a) The commission shall regulate the safety, vegetation 180 management, repair, replacement, maintenance, relocation, 181 emergency response, and storm restoration requirements for poles 182 of communication services providers. This subsection does not 183 apply to a communications services provider that owns no poles. 184 (b) The commission shall adopt rules by April 1, 2022, to 185 administer and implement this subsection, including, but not 186 limited to: 187 1. Mandatory pole inspections, including repair or 188 replacement; vegetation management requirements for poles owned 189 by providers of communications services; and 190 2. Monetary penalties to be imposed upon any communications 191 services provider that fails to comply with any such rule of the 192 commission. Monetary penalties imposed by the commission must be 193 consistent with s. 366.095. 194 (c) The commission may access the books and records of 195 communications services providers to the limited extent 196 necessary to perform its functions and to exercise its authority 197 under subsection (8), this subsection, and s. 366.97(4). Upon 198 request by a communications services provider, any records that 199 are shown and found to be proprietary confidential business 200 information that is confidential or exempt from disclosure under 201 s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution 202 which are received by the commission under this paragraph shall 203 retain their confidential or exempt status when held by the 204 commission. 205 Section 4. Section 366.97, Florida Statutes, is created to 206 read: 207 366.97 Redundant poles; transfer of ownership.— 208 (1) The commission by rule shall determine a process by 209 which pole owners shall provide at least 180 calendar days’ 210 electronic or written advance notice to affected attaching 211 entities of major hardening projects the purpose of which is to 212 replace poles to ensure the poles meet extreme wind loading 213 requirements. The advance hardening project notice must include: 214 (a) The scope of the major hardening project, to the extent 215 determined, the locations of the affected poles, the expected 216 start date, and the expected completion date of the major 217 hardening project; and 218 (b) The date, time, and location of a field meeting for the 219 pole owner and attaching entities to review and discuss the 220 planned major hardening project details, including the types of 221 replacement poles to be used. The field meeting must occur no 222 sooner than 15 calendar days after the date of the notice and no 223 later than 60 calendar days after the notice and, at a minimum, 224 must include sufficient information to enable the attaching 225 entity to locate the affected poles and identify the owner of 226 any facilities attached to the poles. 227 (2)(a) An attaching entity must remove its pole attachments 228 from a redundant pole within 180 calendar days after receipt of 229 an electronic or a written notice from the pole owner requesting 230 such removal. The commission shall determine by rule the 231 sufficiency of, and requirements for, such removal notice and 232 may consider the use of a joint use notification software 233 program to accomplish such removal notice. 234 (b) If an attaching entity fails to remove a pole 235 attachment pursuant to paragraph (a), except to the extent 236 excused by an event of force majeure or other good cause as 237 determined by the commission, the pole owner or its agent may 238 transfer or relocate the pole attachment to the new pole at the 239 noncompliant attaching entity’s expense. This subsection does 240 not apply to an electric utility’s pole attachments. An 241 attaching entity shall submit payment to the pole owner within 242 60 days after receipt of the pole owner’s invoice. A pole owner 243 may seek to enforce its right to payment under this paragraph in 244 circuit court and is entitled to prejudgment interest at the 245 prevailing statutory rate and reasonable attorney fees and court 246 costs. Upon receipt by the pole owner of written notice that 247 complies with the commission rule, the noncompliant attaching 248 entity shall indemnify, defend, and hold harmless the pole owner 249 and its directors, officers, agents, and employees from and 250 against all liability, except to the extent of any finding of 251 negligence or willful misconduct, including attorney fees and 252 litigation costs, arising in connection with the transfer of the 253 pole attachment from a redundant pole to a new pole by the pole 254 owner. 255 (c) If a pole attachment is no longer in use by a 256 noncompliant attaching entity, the pole owner or its agent may 257 remove the pole attachment at the noncompliant attaching 258 entity’s expense and may sell or dispose of the pole attachment, 259 except to the extent the attaching entity’s noncompliance is 260 excused by an event of force majeure or other good cause as 261 determined by the commission. An attaching entity shall submit 262 payment to the pole owner within 60 days after receipt of the 263 pole owner’s invoice. A pole owner may seek to enforce its right 264 to payment under this paragraph in circuit court and is entitled 265 to prejudgment interest at the prevailing statutory rate and 266 reasonable attorney fees and court costs. Upon receipt by the 267 pole owner of written notice that complies with the commission 268 rule, the noncompliant attaching entity shall indemnify, defend, 269 and hold harmless the pole owner and its directors, officers, 270 agents, and employees from and against all liability, except to 271 the extent of any finding of negligence or willful misconduct, 272 including attorney fees and litigation costs, arising in 273 connection with the removal, transfer, sale, or disposal of the 274 pole attachments from a redundant pole by the pole owner. 275 (d) The commission may require by rule that an attaching 276 entity post security instruments in favor of pole owners in 277 amounts reasonably sufficient to cover the cost of the removal, 278 transfer, sale, or disposal of pole attachments. The rules do 279 not apply to existing agreements between the pole owners and the 280 attaching entity if the agreement expressly provides for, or 281 disclaims, security requirements. 282 (3) Upon petition by a pole owner, the commission may issue 283 orders requiring the removal or transfer of pole attachments by 284 noncompliant attaching entities. 285 (4) This section may not be construed to do any of the 286 following: 287 (a) Prevent a party at any time from entering into a 288 voluntary agreement authorizing a pole owner to remove an 289 attaching entity’s pole attachment. It is the intent of the 290 Legislature to encourage parties to enter into such voluntary 291 agreements without commission approval. 292 (b) Impair the contract rights of a party to a valid pole 293 attachment agreement in existence before the effective date of 294 this act. 295 (5) The commission shall adopt rules by April 1, 2022, to 296 implement this section, including rules providing for the timely 297 and coordinated removal of all pole attachments from redundant 298 poles and establishing monetary penalties to be imposed against 299 any entity in violation of this section. 300 Section 5. The Division of Law Revision is directed to 301 replace the phrase “the effective date of this act” wherever it 302 occurs in this act with the date this act becomes a law. 303 Section 6. This act shall take effect upon becoming a law.