CS for SB 1944 First Engrossed 20211944e1 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, charges, terms, and 18 conditions for pole attachments and apply certain 19 decisions and orders of the Federal Communications 20 Commission; requiring the commission to authorize 21 certain parties to participate as an intervenor in a 22 specified number of administrative proceedings; 23 requiring the commission to adopt rules by a specified 24 date and provide certification to the Federal 25 Communications Commission upon such adoption; 26 requiring the commission to regulate the safety, 27 vegetation management, repair, replacement, 28 maintenance, relocation, emergency response, and storm 29 restoration requirements for poles of communications 30 services providers; providing an exception; requiring 31 the commission to adopt rules, including monetary 32 penalties, by a specified date; authorizing the 33 commission to access the books and records of 34 communications services providers for specified 35 purposes; providing that such information that 36 contains proprietary confidential business information 37 retains its confidential or exempt status when held by 38 the commission; creating s. 366.97, F.S.; requiring 39 pole owners to give advance notice to affected 40 attaching entities of hardening projects; requiring 41 attaching entities to remove pole attachments from 42 redundant poles within a specified timeframe after 43 receipt of electronic or written notice from the pole 44 owner; authorizing a pole owner or its agent to 45 transfer or relocate pole attachments of an attaching 46 entity at the entity’s expense under certain 47 circumstances; providing an exception; requiring 48 attaching entities to submit payment within a 49 specified timeframe; authorizing pole owners to seek 50 enforcement of such payment; requiring that the pole 51 owner and its directors, officers, agents, and 52 employees be held harmless under certain circumstances 53 for such actions; authorizing a pole owner to remove 54 and sell or dispose of certain abandoned pole 55 attachments; authorizing the commission to issue 56 orders for the removal or transfer of pole attachments 57 by noncompliant attaching entities upon petition by a 58 pole owner; providing construction; providing a 59 directive to the Division of Law Revision; providing 60 an effective date. 61 62 Be It Enacted by the Legislature of the State of Florida: 63 64 Section 1. Paragraph (g) is added to subsection (13) of 65 section 120.80, Florida Statutes, to read: 66 120.80 Exceptions and special requirements; agencies.— 67 (13) FLORIDA PUBLIC SERVICE COMMISSION.— 68 (g) Rules adopted by the Florida Public Service Commission 69 to implement ss. 366.04(8) and (9) and 366.97 are not subject to 70 s. 120.541. 71 Section 2. Subsections (4) through (9) are added to section 72 366.02, Florida Statutes, to read: 73 366.02 Definitions.—As used in this chapter: 74 (4) “Attaching entity” means a person that is a local 75 exchange carrier, a public utility, a communications services 76 provider, a broadband service provider, or a cable television 77 operator that owns or controls pole attachments. 78 (5) “Communications services provider” means an entity 79 providing communications services as defined in s. 202.11(1). 80 (6) “Pole” means a pole used for electric distribution 81 service, streetlights, communications services, local exchange 82 services, or cable television services which is owned in whole 83 or in part by a pole owner. The term does not include a pole 84 used solely to support wireless communications service 85 facilities or a pole with no electrical facilities attached. 86 (7) “Pole attachment” means any attachment by a public 87 utility, local exchange carrier communications services 88 provider, broadband provider, or cable television operator to a 89 pole, duct, conduit, or right-of-way owned or controlled by a 90 pole owner. 91 (8) “Pole owner” means a local exchange carrier, a public 92 utility, a communications services provider, or a cable 93 television operator that owns a pole. 94 (9) “Redundant pole” means a pole owned or controlled by a 95 pole owner which is: 96 (a) Near or adjacent to a new pole that is intended to 97 replace the old pole from which some or all of the pole 98 attachments have not been removed and transferred to the new 99 pole; 100 (b) Left standing after the pole owner has relocated its 101 facilities to underground but on which pole attachments of other 102 attaching entities remain; or 103 (c) Left standing after a pole owner’s attachments have 104 been removed from that route or location to accommodate a new 105 route or design for the delivery of service. 106 Section 3. Subsections (8) and (9) are added to section 107 366.04, Florida Statutes, to read: 108 366.04 Jurisdiction of commission.— 109 (8)(a) The commission shall regulate and enforce rates, 110 charges, terms, and conditions of pole attachments, including 111 the types of attachments regulated under 47 U.S.C. s. 224(a)(4), 112 attachments to streetlight fixtures, attachments to poles owned 113 by a public utility, or attachments to poles owned by a 114 communications services provider, to ensure that such rates, 115 charges, terms, and conditions are just and reasonable. The 116 commission’s authority under this subsection includes, but is 117 not limited to, the state regulatory authority referenced in 47 118 U.S.C. s. 224(c). 119 (b) In the development of rules pursuant to paragraph (g), 120 the commission shall consider the interests of the subscribers 121 and users of the services offered through such pole attachments, 122 as well as the interests of the consumers of any pole owner 123 providing such attachments. 124 (c) It is the intent of the Legislature to encourage 125 parties to enter into voluntary pole attachment agreements, and 126 this subsection may not be construed to prevent parties from 127 voluntarily entering into pole attachment agreements without 128 commission approval. 129 (d) A party’s right to nondiscriminatory access to a pole 130 under this subsection is identical to the rights afforded under 131 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its 132 poles on a nondiscriminatory basis when there is insufficient 133 capacity, for reasons of safety and reliability, and when 134 required by generally applicable engineering purposes. A pole 135 owner’s evaluation of capacity, safety, reliability, and 136 engineering requirements must consider relevant construction and 137 reliability standards approved by the commission. 138 (e) The commission shall hear and resolve complaints 139 concerning rates, charges, terms, conditions, voluntary 140 agreements, or any denial of access relative to pole 141 attachments. Federal Communications Commission precedent is not 142 binding upon the commission in the exercise of its authority 143 under this subsection. When taking action upon such complaints, 144 the commission shall establish just and reasonable cost-based 145 rates, terms, and conditions for pole attachments and shall 146 apply the decisions and orders of the Federal Communications 147 Commission and any appellate court decisions reviewing an order 148 of the Federal Communications Commission regarding pole 149 attachment rates, terms, or conditions in determining just and 150 reasonable pole attachment rates, terms, and conditions unless a 151 pole owner or attaching entity establishes by competent 152 substantial evidence pursuant to proceedings conducted pursuant 153 to ss. 120.569 and 120.57 that an alternative cost-based pole 154 attachment rate is just and reasonable and in the public 155 interest. 156 (f) In the administration and implementation of this 157 subsection, the commission shall authorize any petitioning pole 158 owner or attaching entity to participate as an intervenor with 159 full party rights under chapter 120 in the first four formal 160 administrative proceedings conducted to determine pole 161 attachment rates under this section. These initial four 162 proceedings are intended to provide commission precedent on the 163 establishment of pole attachment rates by the commission and 164 help guide negotiations toward voluntary pole attachment 165 agreements. After the fourth such formal administrative 166 proceeding is concluded by final order, parties to subsequent 167 pole attachment rate proceedings are limited to the specific 168 pole owner and pole attaching entities involved in and directly 169 affected by the specific pole attachment rate. 170 (g) The commission shall propose procedural rules to 171 administer and implement this subsection. The rules must be 172 proposed for adoption no later than January 1, 2022, and, upon 173 adoption of such rules, shall provide its certification to the 174 Federal Communications Commission pursuant to 47 U.S.C. s. 175 224(c)(2). 176 (9)(a) The commission shall regulate the safety, vegetation 177 management, repair, replacement, maintenance, relocation, 178 emergency response, and storm restoration requirements for poles 179 of communication services providers. This subsection does not 180 apply to a communications services provider that owns no poles. 181 (b) The commission shall adopt rules to administer and 182 implement this subsection. The rules must be proposed for 183 adoption no later than April 1, 2022, and must address at least 184 the following: 185 1. Mandatory pole inspections, including repair or 186 replacement; vegetation management requirements for poles owned 187 by providers of communications services; and 188 2. Monetary penalties to be imposed upon any communications 189 services provider that fails to comply with any such rule of the 190 commission. Monetary penalties imposed by the commission must be 191 consistent with s. 366.095. 192 (c) The commission may access the books and records of 193 communications services providers to the limited extent 194 necessary to perform its functions and to exercise its authority 195 under subsection (8), this subsection, and s. 366.97(4). Upon 196 request by a communications services provider, any records that 197 are received by the commission under this paragraph which are 198 proprietary confidential business information under s. 364.183 199 or s. 366.093 shall retain their status as confidential or 200 exempt from disclosure under s. 119.07(1) and s. 24(a), Art. I 201 of the State Constitution. 202 Section 4. Section 366.97, Florida Statutes, is created to 203 read: 204 366.97 Redundant poles; transfer of ownership.— 205 (1) Pole owners shall provide at least 180 calendar days’ 206 electronic or written advance notice to affected attaching 207 entities of major hardening projects the purpose of which is to 208 replace poles to ensure the poles meet extreme wind loading 209 requirements. The advance hardening project notice must include: 210 (a) The scope of the major hardening project, to the extent 211 determined, the locations of the affected poles, the expected 212 start date, and the expected completion date of the major 213 hardening project; and 214 (b) The date, time, and location of a field meeting for the 215 pole owner and attaching entities to review and discuss the 216 planned major hardening project details, including the types of 217 replacement poles to be used. The field meeting must occur no 218 sooner than 15 calendar days after the date of the notice and no 219 later than 60 calendar days after the notice and, at a minimum, 220 must include sufficient information to enable the attaching 221 entity to locate the affected poles and identify the owner of 222 any facilities attached to the poles. 223 (2)(a) An attaching entity must remove its pole attachments 224 from a redundant pole within 180 calendar days after receipt of 225 an electronic or a written notice from the pole owner requesting 226 such removal. A pole owner may use a joint use notification 227 software program to accomplish such written or electronic 228 removal notice. 229 (b) If an attaching entity fails to remove a pole 230 attachment pursuant to paragraph (a), except to the extent 231 excused by an event of force majeure or other good cause as 232 agreed to by the parties or as determined by the commission or 233 its designee within 30 calendar days after the 180 calendar-day 234 period under paragraph (a), the pole owner or its agent may 235 transfer or relocate the pole attachment to the new pole at the 236 noncompliant attaching entity’s expense. This subsection does 237 not apply to an electric utility’s pole attachments. An 238 attaching entity shall submit payment to the pole owner within 239 60 days after receipt of the pole owner’s invoice for transfer 240 or relocation of the pole attachments. A pole owner may seek to 241 enforce its right to payment under this paragraph in circuit 242 court and, if it prevails, is entitled to prejudgment interest 243 at the prevailing statutory rate and reasonable attorney fees 244 and court costs. Upon receipt by the pole owner of written 245 notice, the attaching entity that fails to comply with this 246 subsection shall indemnify, defend, and hold harmless the pole 247 owner and its directors, officers, agents, and employees from 248 and against all liability, except to the extent of any finding 249 of negligence or willful misconduct, including attorney fees and 250 litigation costs, arising in connection with the transfer of the 251 pole attachment from a redundant pole to a new pole by the pole 252 owner. 253 (c) If a pole attachment is abandoned by an attaching 254 entity that fails to remove or transfer its attachments in 255 accordance with this section, the pole owner or its agent may 256 remove the pole attachment at the noncompliant attaching 257 entity’s expense and may sell or dispose of the pole attachment, 258 except to the extent the attaching entity’s noncompliance is 259 excused by an event of force majeure or other good cause as 260 determined by the commission. An attaching entity shall submit 261 payment to the pole owner within 60 days after receipt of the 262 pole owner’s invoice. A pole owner may seek to enforce its right 263 to payment under this paragraph in circuit court and, if it 264 prevails, is entitled to prejudgment interest at the prevailing 265 statutory rate and reasonable attorney fees and court costs. 266 Upon receipt by the pole owner of written notice, the 267 noncompliant attaching entity shall indemnify, defend, and hold 268 harmless the pole owner and its directors, officers, agents, and 269 employees from and against all liability, except to the extent 270 of any finding of negligence or willful misconduct, including 271 attorney fees and litigation costs, arising in connection with 272 the removal, transfer, sale, or disposal of the pole attachments 273 from a redundant pole by the pole owner. 274 (3) Upon petition by a pole owner or an attaching entity, 275 the commission may issue orders enforcing this section which do 276 not expressly relate to circuit court jurisdiction. 277 (4) This section may not be construed to do any of the 278 following: 279 (a) Prevent a party at any time from entering into a 280 voluntary agreement authorizing a pole owner to remove an 281 attaching entity’s pole attachment. It is the intent of the 282 Legislature to encourage parties to enter into such voluntary 283 agreements without commission approval. 284 (b) Impair the contract rights of a party to a valid pole 285 attachment agreement in existence before the effective date of 286 this act. 287 Section 5. The Division of Law Revision is directed to 288 replace the phrase “the effective date of this act” wherever it 289 occurs in this act with the date this act becomes a law. 290 Section 6. This act shall take effect upon becoming a law.