ENROLLED
       2021 Legislature                   CS for SB 1944, 1st Engrossed
       
       
       
       
       
       
                                                             20211944er
    1  
    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.