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         366.97Redundant 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         (4This 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.