Florida Senate - 2022 SB 1752
By Senator Torres
15-01723-22 20221752__
1 A bill to be entitled
2 An act relating to communications services; amending
3 s. 337.401, F.S.; removing certain communications
4 services lines as items over which certain
5 governmental entities are authorized to prescribe and
6 enforce reasonable rules and regulations; removing
7 time restrictions placed upon certain counties and
8 municipalities for processing certain permit
9 applications; removing provisions that specify
10 limitations and prohibitions on municipalities and
11 counties relating to registrations and renewals of
12 communications services providers; removing provisions
13 that authorize municipalities and counties to require
14 certain information as part of a registration;
15 removing provisions that prohibit municipalities and
16 counties from requiring a payment of fees, costs, or
17 charges for provider registration or renewal; removing
18 provisions that prohibit municipalities and counties
19 from adopting or enforcing certain ordinances,
20 regulations, or requirements; removing limitations on
21 municipal and county authority to regulate and manage
22 municipal and county roads or rights-of-way; removing
23 provisions that prohibit certain municipalities and
24 counties from imposing permit fees; removing
25 provisions that specify activities for which permit
26 fees may not be imposed; removing the requirement that
27 enforcement of certain ordinances must be suspended
28 until certain conditions are met; removing a condition
29 for certain in-kind compensation; revising items over
30 which municipalities and counties may exercise
31 regulatory control; removing provisions for
32 requirements relating to right-of-way permits;
33 removing provisions relating to municipal and county
34 authority over pass-through providers; deleting
35 references to, and administration and provisions of,
36 the Advanced Wireless Infrastructure Deployment Act;
37 removing a provision authorizing a civil action for
38 specified violations; removing certain actions a court
39 may take; removing provisions that require that work
40 in certain authority rights-of-way must comply with a
41 specified document; providing an effective date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Paragraph (a) of subsection (1), subsections (2)
46 and (3), paragraph (d) of subsection (6), and subsections (7),
47 (8), and (9) of section 337.401, Florida Statutes, are amended
48 to read:
49 337.401 Use of right-of-way for utilities subject to
50 regulation; permit; fees.—
51 (1)(a) The department and local governmental entities,
52 referred to in this section and in ss. 337.402, 337.403, and
53 337.404 as the “authority,” that have jurisdiction and control
54 of public roads or publicly owned rail corridors are authorized
55 to prescribe and enforce reasonable rules or regulations with
56 reference to the placing and maintaining across, on, or within
57 the right-of-way limits of any road or publicly owned rail
58 corridors under their respective jurisdictions any electric
59 transmission, voice, telegraph, data, or other communications
60 services lines or wireless facilities; pole lines; poles;
61 railways; ditches; sewers; water, heat, or gas mains; pipelines;
62 fences; gasoline tanks and pumps; or other structures referred
63 to in this section and in ss. 337.402, 337.403, and 337.404 as
64 the “utility.” The department may enter into a permit-delegation
65 agreement with a governmental entity if issuance of a permit is
66 based on requirements that the department finds will ensure the
67 safety and integrity of facilities of the Department of
68 Transportation; however, the permit-delegation agreement does
69 not apply to facilities of electric utilities as defined in s.
70 366.02(2).
71 (2) The authority may grant to any person who is a resident
72 of this state, or to any corporation which is organized under
73 the laws of this state or licensed to do business within this
74 state, the use of a right-of-way for the utility in accordance
75 with such rules or regulations as the authority may adopt. A
76 utility may not be installed, located, or relocated unless
77 authorized by a written permit issued by the authority. However,
78 for public roads or publicly owned rail corridors under the
79 jurisdiction of the department, a utility relocation schedule
80 and relocation agreement may be executed in lieu of a written
81 permit. The permit must require the permitholder to be
82 responsible for any damage resulting from the issuance of such
83 permit. The authority may initiate injunctive proceedings as
84 provided in s. 120.69 to enforce provisions of this subsection
85 or any rule or order issued or entered into pursuant thereto. A
86 permit application required under this subsection by a county or
87 municipality having jurisdiction and control of the right-of-way
88 of any public road must be processed and acted upon in
89 accordance with the timeframes provided in subparagraphs
90 (7)(d)7., 8., and 9.
91 (3)(a) Because of the unique circumstances applicable to
92 providers of communications services, including, but not limited
93 to, the circumstances described in paragraph (e) and the fact
94 that federal and state law require the nondiscriminatory
95 treatment of providers of telecommunications services, and
96 because of the desire to promote competition among providers of
97 communications services, it is the intent of the Legislature
98 that municipalities and counties treat providers of
99 communications services in a nondiscriminatory and competitively
100 neutral manner when imposing rules or regulations governing the
101 placement or maintenance of communications facilities in the
102 public roads or rights-of-way. Rules or regulations imposed by a
103 municipality or county relating to providers of communications
104 services placing or maintaining communications facilities in its
105 roads or rights-of-way must be generally applicable to all
106 providers of communications services, taking into account the
107 distinct engineering, construction, operation, maintenance,
108 public works, and safety requirements of the provider’s
109 facilities, and, notwithstanding any other law, may not require
110 a provider of communications services to apply for or enter into
111 an individual license, franchise, or other agreement with the
112 municipality or county as a condition of placing or maintaining
113 communications facilities in its roads or rights-of-way. In
114 addition to other reasonable rules or regulations that a
115 municipality or county may adopt relating to the placement or
116 maintenance of communications facilities in its roads or rights
117 of-way under this subsection or subsection (7), a municipality
118 or county may require a provider of communications services that
119 places or seeks to place facilities in its roads or rights-of
120 way to register with the municipality or county. To register, a
121 provider of communications services may be required only to
122 provide its name; the name, address, and telephone number of a
123 contact person for the registrant; the number of the
124 registrant’s current certificate of authorization issued by the
125 Florida Public Service Commission, the Federal Communications
126 Commission, or the Department of State; a statement of whether
127 the registrant is a pass-through provider as defined in
128 subparagraph (6)(a)1.; the registrant’s federal employer
129 identification number; and any required proof of insurance or
130 self-insuring status adequate to defend and cover claims. A
131 municipality or county may not require a registrant to renew a
132 registration more frequently than every 5 years but may require
133 during this period that a registrant update the registration
134 information provided under this subsection within 90 days after
135 a change in such information. A municipality or county may not
136 require the registrant to provide an inventory of communications
137 facilities, maps, locations of such facilities, or other
138 information by a registrant as a condition of registration,
139 renewal, or for any other purpose; provided, however, that a
140 municipality or county may require as part of a permit
141 application that the applicant identify at-grade communications
142 facilities within 50 feet of the proposed installation location
143 for the placement of at-grade communications facilities. A
144 municipality or county may not require a provider to pay any
145 fee, cost, or other charge for registration or renewal thereof.
146 It is the intent of the Legislature that the placement,
147 operation, maintenance, upgrading, and extension of
148 communications facilities not be unreasonably interrupted or
149 delayed through the permitting or other local regulatory
150 process. Except as provided in this chapter or otherwise
151 expressly authorized by chapter 202, chapter 364, or chapter
152 610, a municipality or county may not adopt or enforce any
153 ordinance, regulation, or requirement as to the placement or
154 operation of communications facilities in a right-of-way by a
155 communications services provider authorized by state or local
156 law to operate in a right-of-way; regulate any communications
157 services; or impose or collect any tax, fee, cost, charge, or
158 exaction for the provision of communications services over the
159 communications services provider’s communications facilities in
160 a right-of-way.
161 (b) Registration described in paragraph (a) does not
162 establish a right to place or maintain, or priority for the
163 placement or maintenance of, a communications facility in roads
164 or rights-of-way of a municipality or county. Each municipality
165 and county retains the authority to regulate and manage
166 municipal and county roads or rights-of-way in exercising its
167 police power, subject to the limitations imposed in this section
168 and chapters 202 and 610. Any rules or regulations adopted by a
169 municipality or county which govern the occupation of its roads
170 or rights-of-way by providers of communications services must be
171 related to the placement or maintenance of facilities in such
172 roads or rights-of-way, must be reasonable and
173 nondiscriminatory, and may include only those matters necessary
174 to manage the roads or rights-of-way of the municipality or
175 county.
176 (c) Any municipality or county that, as of January 1, 2019,
177 elected to require permit fees from any provider of
178 communications services that uses or occupies municipal or
179 county roads or rights-of-way pursuant to former paragraph (c)
180 or former paragraph (j), Florida Statutes 2018, may continue to
181 require and collect such fees. A municipality or county that
182 elected as of January 1, 2019, to require permit fees may elect
183 to forego such fees as provided herein. A municipality or county
184 that elected as of January 1, 2019, not to require permit fees
185 may not elect to impose permit fees. All fees authorized under
186 this paragraph must be reasonable and commensurate with the
187 direct and actual cost of the regulatory activity, including
188 issuing and processing permits, plan reviews, physical
189 inspection, and direct administrative costs; must be
190 demonstrable; and must be equitable among users of the roads or
191 rights-of-way. A fee authorized under this paragraph may not be
192 offset against the tax imposed under chapter 202; include the
193 costs of roads or rights-of-way acquisition or roads or rights
194 of-way rental; include any general administrative, management,
195 or maintenance costs of the roads or rights-of-way; or be based
196 on a percentage of the value or costs associated with the work
197 to be performed on the roads or rights-of-way. In an action to
198 recover amounts due for a fee not authorized under this
199 paragraph, the prevailing party may recover court costs and
200 attorney fees at trial and on appeal. In addition to the
201 limitations set forth in this section, a fee levied by a
202 municipality or charter county under this paragraph may not
203 exceed $100. However, permit fees may not be imposed with
204 respect to permits that may be required for service drop lines
205 not required to be noticed under s. 556.108(5) or for any
206 activity that does not require the physical disturbance of the
207 roads or rights-of-way or does not impair access to or full use
208 of the roads or rights-of-way, including, but not limited to,
209 the performance of service restoration work on existing
210 facilities, extensions of such facilities for providing
211 communications services to customers, and the placement of micro
212 wireless facilities in accordance with subparagraph (7)(e)3.
213 1. If a municipality or charter county elects to not
214 require permit fees, the total rate for the local communications
215 services tax as computed under s. 202.20 for that municipality
216 or charter county may be increased by ordinance or resolution by
217 an amount not to exceed a rate of 0.12 percent.
218 2. If a noncharter county elects to not require permit
219 fees, the total rate for the local communications services tax
220 as computed under s. 202.20 for that noncharter county may be
221 increased by ordinance or resolution by an amount not to exceed
222 a rate of 0.24 percent, to replace the revenue the noncharter
223 county would otherwise have received from permit fees for
224 providers of communications services.
225 (d) In addition to any other notice requirements, a
226 municipality must provide to the Secretary of State, at least 10
227 days prior to consideration on first reading, notice of a
228 proposed ordinance governing a telecommunications company
229 placing or maintaining telecommunications facilities in its
230 roads or rights-of-way. In addition to any other notice
231 requirements, a county must provide to the Secretary of State,
232 at least 15 days prior to consideration at a public hearing,
233 notice of a proposed ordinance governing a telecommunications
234 company placing or maintaining telecommunications facilities in
235 its roads or rights-of-way. The notice required by this
236 paragraph must be published by the Secretary of State on a
237 designated Internet website. The failure of a municipality or
238 county to provide such notice does not render the ordinance
239 invalid, provided that enforcement of such ordinance must be
240 suspended until 30 days after the municipality or county
241 provides the required notice.
242 (e) The authority of municipalities and counties to require
243 franchise fees from providers of communications services, with
244 respect to the provision of communications services, is
245 specifically preempted by the state because of unique
246 circumstances applicable to providers of communications services
247 when compared to other utilities occupying municipal or county
248 roads or rights-of-way. Providers of communications services may
249 provide similar services in a manner that requires the placement
250 of facilities in municipal or county roads or rights-of-way or
251 in a manner that does not require the placement of facilities in
252 such roads or rights-of-way. Although similar communications
253 services may be provided by different means, the state desires
254 to treat providers of communications services in a
255 nondiscriminatory manner and to have the taxes, franchise fees,
256 and other fees, costs, and financial or regulatory exactions
257 paid by or imposed on providers of communications services be
258 competitively neutral. Municipalities and counties retain all
259 existing authority, if any, to collect franchise fees from users
260 or occupants of municipal or county roads or rights-of-way other
261 than providers of communications services, and the provisions of
262 this subsection shall have no effect upon this authority. The
263 provisions of this subsection do not restrict the authority, if
264 any, of municipalities or counties or other governmental
265 entities to receive reasonable rental fees based on fair market
266 value for the use of public lands and buildings on property
267 outside the public roads or rights-of-way for the placement of
268 communications antennas and towers.
269 (f) Except as expressly allowed or authorized by general
270 law and except for the rights-of-way permit fees subject to
271 paragraph (c), a municipality or county may not levy on a
272 provider of communications services a tax, fee, or other charge
273 or imposition for operating as a provider of communications
274 services within the jurisdiction of the municipality or county
275 which is in any way related to using its roads or rights-of-way.
276 A municipality or county may not require or solicit in-kind
277 compensation, except as otherwise provided in s. 202.24(2)(c)8.,
278 provided that the in-kind compensation is not a franchise fee
279 under federal law. Nothing in this paragraph impairs the
280 authority of a municipality or county to request public,
281 educational, or governmental access channels pursuant to s.
282 610.109. Nothing in this paragraph shall impair any ordinance or
283 agreement in effect on May 22, 1998, or any voluntary agreement
284 entered into subsequent to that date, which provides for or
285 allows in-kind compensation by a telecommunications company.
286 (g) A municipality or county may not use its authority over
287 the placement of facilities in its roads and rights-of-way as a
288 basis for asserting or exercising regulatory control over a
289 provider of communications services regarding matters within the
290 exclusive jurisdiction of the Florida Public Service Commission
291 or the Federal Communications Commission, including, but not
292 limited to, the operations, systems, equipment, technology,
293 qualifications, services, service quality, service territory,
294 and prices of a provider of communications services. A
295 municipality or county may not require any permit for the
296 maintenance, repair, replacement, extension, or upgrade of
297 existing aerial wireline communications facilities on utility
298 poles or for aerial wireline facilities between existing
299 wireline communications facility attachments on utility poles by
300 a communications services provider. However, a municipality or
301 county may require a right-of-way permit for work that involves
302 excavation, closure of a sidewalk, or closure of a vehicular
303 lane or parking lane, unless the provider is performing service
304 restoration to existing facilities. A permit application
305 required by an authority under this section for the placement of
306 communications facilities must be processed and acted upon
307 consistent with the timeframes provided in subparagraphs
308 (7)(d)7., 8., and 9. In addition, a municipality or county may
309 not require any permit or other approval, fee, charge, or cost,
310 or other exaction for the maintenance, repair, replacement,
311 extension, or upgrade of existing aerial lines or underground
312 communications facilities located on private property outside of
313 the public rights-of-way. As used in this section, the term
314 “extension of existing facilities” includes those extensions
315 from the rights-of-way into a customer’s private property for
316 purposes of placing a service drop or those extensions from the
317 rights-of-way into a utility easement to provide service to a
318 discrete identifiable customer or group of customers.
319 (h) A provider of communications services that has obtained
320 permission to occupy the roads or rights-of-way of an
321 incorporated municipality pursuant to s. 362.01 or that is
322 otherwise lawfully occupying the roads or rights-of-way of a
323 municipality or county shall not be required to obtain consent
324 to continue such lawful occupation of those roads or rights-of
325 way; however, nothing in this paragraph shall be interpreted to
326 limit the power of a municipality or county to adopt or enforce
327 reasonable rules or regulations as provided in this section and
328 consistent with chapters 202, 364, and 610. Any such rules or
329 regulations must be in writing, and registered providers of
330 communications services in the municipality or county must be
331 given at least 60 days’ advance written notice of any changes to
332 the rules and regulations.
333 (i) Except as expressly provided in this section, this
334 section does not modify the authority of municipalities and
335 counties to levy the tax authorized in chapter 202 or the duties
336 of providers of communications services under ss. 337.402
337 337.404. This section does not apply to building permits, pole
338 attachments, or private roads, private easements, and private
339 rights-of-way.
340 (j) Notwithstanding the provisions of s. 202.19, when a
341 local communications services tax rate is changed as a result of
342 an election made or changed under this subsection, such rate may
343 not be rounded to tenths.
344 (6)
345 (d) The amounts charged pursuant to this subsection shall
346 be based on the linear miles of roads or rights-of-way where a
347 communications facility is placed, not based on a summation of
348 the lengths of individual cables, conduits, strands, or fibers.
349 The amounts referenced in this subsection may be charged only
350 once annually and only to one person annually for any
351 communications facility. A municipality or county shall
352 discontinue charging such amounts to a person that has ceased to
353 be a pass-through provider. Any annual amounts charged shall be
354 reduced for a prorated portion of any 12-month period during
355 which the person remits taxes imposed by the municipality or
356 county pursuant to chapter 202. Any excess amounts paid to a
357 municipality or county shall be refunded to the person upon
358 written notice of the excess to the municipality or county. A
359 municipality or county may require a pass-through provider to
360 provide an annual notarized statement identifying the total
361 number of linear miles of pass-through facilities in the
362 municipality’s or county’s rights-of-way. Upon request from a
363 municipality or county, a pass-through provider must provide
364 reasonable access to maps of pass-through facilities located in
365 the rights-of-way of the municipality or county making the
366 request. The scope of the request must be limited to only those
367 maps of pass-through facilities from which the calculation of
368 the linear miles of pass-through facilities in the rights-of-way
369 can be determined. The request must be accompanied by an
370 affidavit that the person making the request is authorized by
371 the municipality or county to review tax information related to
372 the revenue and mileage calculations for pass-through providers.
373 A request may not be made more than once annually to a pass
374 through provider.
375 (7)(a) This subsection may be cited as the “Advanced
376 Wireless Infrastructure Deployment Act.”
377 (b) As used in this subsection, the term:
378 1. “Antenna” means communications equipment that transmits
379 or receives electromagnetic radio frequency signals used in
380 providing wireless services.
381 2. “Applicable codes” means uniform building, fire,
382 electrical, plumbing, or mechanical codes adopted by a
383 recognized national code organization or local amendments to
384 those codes enacted solely to address threats of destruction of
385 property or injury to persons, and includes the National
386 Electric Safety Code and the 2017 edition of the Florida
387 Department of Transportation Utility Accommodation Manual.
388 3. “Applicant” means a person who submits an application
389 and is a wireless provider.
390 4. “Application” means a request submitted by an applicant
391 to an authority for a permit to collocate small wireless
392 facilities or to place a new utility pole used to support a
393 small wireless facility.
394 5. “Authority” means a county or municipality having
395 jurisdiction and control of the rights-of-way of any public
396 road. The term does not include the Department of
397 Transportation. Rights-of-way under the jurisdiction and control
398 of the department are excluded from this subsection.
399 6. “Authority utility pole” means a utility pole owned by
400 an authority in the right-of-way. The term does not include a
401 utility pole owned by a municipal electric utility, a utility
402 pole used to support municipally owned or operated electric
403 distribution facilities, or a utility pole located in the right
404 of-way within:
405 a. A retirement community that:
406 (I) Is deed restricted as housing for older persons as
407 defined in s. 760.29(4)(b);
408 (II) Has more than 5,000 residents; and
409 (III) Has underground utilities for electric transmission
410 or distribution.
411 b. A municipality that:
412 (I) Is located on a coastal barrier island as defined in s.
413 161.053(1)(b)3.;
414 (II) Has a land area of less than 5 square miles;
415 (III) Has less than 10,000 residents; and
416 (IV) Has, before July 1, 2017, received referendum approval
417 to issue debt to finance municipal-wide undergrounding of its
418 utilities for electric transmission or distribution.
419 7. “Collocate” or “collocation” means to install, mount,
420 maintain, modify, operate, or replace one or more wireless
421 facilities on, under, within, or adjacent to a wireless support
422 structure or utility pole. The term does not include the
423 installation of a new utility pole or wireless support structure
424 in the public rights-of-way.
425 8. “FCC” means the Federal Communications Commission.
426 9. “Micro wireless facility” means a small wireless
427 facility having dimensions no larger than 24 inches in length,
428 15 inches in width, and 12 inches in height and an exterior
429 antenna, if any, no longer than 11 inches.
430 10. “Small wireless facility” means a wireless facility
431 that meets the following qualifications:
432 a. Each antenna associated with the facility is located
433 inside an enclosure of no more than 6 cubic feet in volume or,
434 in the case of antennas that have exposed elements, each antenna
435 and all of its exposed elements could fit within an enclosure of
436 no more than 6 cubic feet in volume; and
437 b. All other wireless equipment associated with the
438 facility is cumulatively no more than 28 cubic feet in volume.
439 The following types of associated ancillary equipment are not
440 included in the calculation of equipment volume: electric
441 meters, concealment elements, telecommunications demarcation
442 boxes, ground-based enclosures, grounding equipment, power
443 transfer switches, cutoff switches, vertical cable runs for the
444 connection of power and other services, and utility poles or
445 other support structures.
446 11. “Utility pole” means a pole or similar structure that
447 is used in whole or in part to provide communications services
448 or for electric distribution, lighting, traffic control,
449 signage, or a similar function. The term includes the vertical
450 support structure for traffic lights but does not include a
451 horizontal structure to which signal lights or other traffic
452 control devices are attached and does not include a pole or
453 similar structure 15 feet in height or less unless an authority
454 grants a waiver for such pole.
455 12. “Wireless facility” means equipment at a fixed location
456 which enables wireless communications between user equipment and
457 a communications network, including radio transceivers,
458 antennas, wires, coaxial or fiber-optic cable or other cables,
459 regular and backup power supplies, and comparable equipment,
460 regardless of technological configuration, and equipment
461 associated with wireless communications. The term includes small
462 wireless facilities. The term does not include:
463 a. The structure or improvements on, under, within, or
464 adjacent to the structure on which the equipment is collocated;
465 b. Wireline backhaul facilities; or
466 c. Coaxial or fiber-optic cable that is between wireless
467 structures or utility poles or that is otherwise not immediately
468 adjacent to or directly associated with a particular antenna.
469 13. “Wireless infrastructure provider” means a person who
470 has been certificated under chapter 364 to provide
471 telecommunications service or under chapter 610 to provide cable
472 or video services in this state, or that person’s affiliate, and
473 who builds or installs wireless communication transmission
474 equipment, wireless facilities, or wireless support structures
475 but is not a wireless services provider.
476 14. “Wireless provider” means a wireless infrastructure
477 provider or a wireless services provider.
478 15. “Wireless services” means any services provided using
479 licensed or unlicensed spectrum, whether at a fixed location or
480 mobile, using wireless facilities.
481 16. “Wireless services provider” means a person who
482 provides wireless services.
483 17. “Wireless support structure” means a freestanding
484 structure, such as a monopole, a guyed or self-supporting tower,
485 or another existing or proposed structure designed to support or
486 capable of supporting wireless facilities. The term does not
487 include a utility pole, pedestal, or other support structure for
488 ground-based equipment not mounted on a utility pole and less
489 than 5 feet in height.
490 (c) Except as provided in this subsection, an authority may
491 not prohibit, regulate, or charge for the collocation of small
492 wireless facilities in the public rights-of-way or for the
493 installation, maintenance, modification, operation, or
494 replacement of utility poles used for the collocation of small
495 wireless facilities in the public rights-of-way.
496 (d) An authority may require a registration process and
497 permit fees in accordance with subsection (3). An authority
498 shall accept applications for permits and shall process and
499 issue permits subject to the following requirements:
500 1. An authority may not directly or indirectly require an
501 applicant to perform services unrelated to the collocation for
502 which approval is sought, such as in-kind contributions to the
503 authority, including reserving fiber, conduit, or pole space for
504 the authority.
505 2. An applicant may not be required to provide more
506 information to obtain a permit than is necessary to demonstrate
507 the applicant’s compliance with applicable codes for the
508 placement of small wireless facilities in the locations
509 identified in the application. An applicant may not be required
510 to provide inventories, maps, or locations of communications
511 facilities in the right-of-way other than as necessary to avoid
512 interference with other at-grade or aerial facilities located at
513 the specific location proposed for a small wireless facility or
514 within 50 feet of such location.
515 3. An authority may not:
516 a. Require the placement of small wireless facilities on
517 any specific utility pole or category of poles;
518 b. Require the placement of multiple antenna systems on a
519 single utility pole;
520 c. Require a demonstration that collocation of a small
521 wireless facility on an existing structure is not legally or
522 technically possible as a condition for granting a permit for
523 the collocation of a small wireless facility on a new utility
524 pole except as provided in paragraph (i);
525 d. Require compliance with an authority’s provisions
526 regarding placement of small wireless facilities or a new
527 utility pole used to support a small wireless facility in
528 rights-of-way under the control of the department unless the
529 authority has received a delegation from the department for the
530 location of the small wireless facility or utility pole, or
531 require such compliance as a condition to receive a permit that
532 is ancillary to the permit for collocation of a small wireless
533 facility, including an electrical permit;
534 e. Require a meeting before filing an application;
535 f. Require direct or indirect public notification or a
536 public meeting for the placement of communication facilities in
537 the right-of-way;
538 g. Limit the size or configuration of a small wireless
539 facility or any of its components, if the small wireless
540 facility complies with the size limits in this subsection;
541 h. Prohibit the installation of a new utility pole used to
542 support the collocation of a small wireless facility if the
543 installation otherwise meets the requirements of this
544 subsection; or
545 i. Require that any component of a small wireless facility
546 be placed underground except as provided in paragraph (i).
547 4. Subject to paragraph (r), an authority may not limit the
548 placement, by minimum separation distances, of small wireless
549 facilities, utility poles on which small wireless facilities are
550 or will be collocated, or other at-grade communications
551 facilities. However, within 14 days after the date of filing the
552 application, an authority may request that the proposed location
553 of a small wireless facility be moved to another location in the
554 right-of-way and placed on an alternative authority utility pole
555 or support structure or placed on a new utility pole. The
556 authority and the applicant may negotiate the alternative
557 location, including any objective design standards and
558 reasonable spacing requirements for ground-based equipment, for
559 30 days after the date of the request. At the conclusion of the
560 negotiation period, if the alternative location is accepted by
561 the applicant, the applicant must notify the authority of such
562 acceptance and the application shall be deemed granted for any
563 new location for which there is agreement and all other
564 locations in the application. If an agreement is not reached,
565 the applicant must notify the authority of such nonagreement and
566 the authority must grant or deny the original application within
567 90 days after the date the application was filed. A request for
568 an alternative location, an acceptance of an alternative
569 location, or a rejection of an alternative location must be in
570 writing and provided by electronic mail.
571 5. An authority shall limit the height of a small wireless
572 facility to 10 feet above the utility pole or structure upon
573 which the small wireless facility is to be collocated. Unless
574 waived by an authority, the height for a new utility pole is
575 limited to the tallest existing utility pole as of July 1, 2017,
576 located in the same right-of-way, other than a utility pole for
577 which a waiver has previously been granted, measured from grade
578 in place within 500 feet of the proposed location of the small
579 wireless facility. If there is no utility pole within 500 feet,
580 the authority shall limit the height of the utility pole to 50
581 feet.
582 6. The installation by a communications services provider
583 of a utility pole in the public rights-of-way, other than a
584 utility pole used to support a small wireless facility, is
585 subject to authority rules or regulations governing the
586 placement of utility poles in the public rights-of-way.
587 7. Within 14 days after receiving an application, an
588 authority must determine and notify the applicant by electronic
589 mail as to whether the application is complete. If an
590 application is deemed incomplete, the authority must
591 specifically identify the missing information. An application is
592 deemed complete if the authority fails to provide notification
593 to the applicant within 14 days.
594 8. An application must be processed on a nondiscriminatory
595 basis. A complete application is deemed approved if an authority
596 fails to approve or deny the application within 60 days after
597 receipt of the application. If an authority does not use the 30
598 day negotiation period provided in subparagraph 4., the parties
599 may mutually agree to extend the 60-day application review
600 period. The authority shall grant or deny the application at the
601 end of the extended period. A permit issued pursuant to an
602 approved application shall remain effective for 1 year unless
603 extended by the authority.
604 9. An authority must notify the applicant of approval or
605 denial by electronic mail. An authority shall approve a complete
606 application unless it does not meet the authority’s applicable
607 codes. If the application is denied, the authority must specify
608 in writing the basis for denial, including the specific code
609 provisions on which the denial was based, and send the
610 documentation to the applicant by electronic mail on the day the
611 authority denies the application. The applicant may cure the
612 deficiencies identified by the authority and resubmit the
613 application within 30 days after notice of the denial is sent to
614 the applicant. The authority shall approve or deny the revised
615 application within 30 days after receipt or the application is
616 deemed approved. The review of a revised application is limited
617 to the deficiencies cited in the denial. If an authority
618 provides for administrative review of the denial of an
619 application, the review must be complete and a written decision
620 issued within 45 days after a written request for review is
621 made. A denial must identify the specific code provisions on
622 which the denial is based. If the administrative review is not
623 complete within 45 days, the authority waives any claim
624 regarding failure to exhaust administrative remedies in any
625 judicial review of the denial of an application.
626 10. An applicant seeking to collocate small wireless
627 facilities within the jurisdiction of a single authority may, at
628 the applicant’s discretion, file a consolidated application and
629 receive a single permit for the collocation of up to 30 small
630 wireless facilities. If the application includes multiple small
631 wireless facilities, an authority may separately address small
632 wireless facility collocations for which incomplete information
633 has been received or which are denied.
634 11. An authority may deny an application to collocate a
635 small wireless facility or place a utility pole used to support
636 a small wireless facility in the public rights-of-way if the
637 proposed small wireless facility or utility pole used to support
638 a small wireless facility:
639 a. Materially interferes with the safe operation of traffic
640 control equipment.
641 b. Materially interferes with sight lines or clear zones
642 for transportation, pedestrians, or public safety purposes.
643 c. Materially interferes with compliance with the Americans
644 with Disabilities Act or similar federal or state standards
645 regarding pedestrian access or movement.
646 d. Materially fails to comply with the 2017 edition of the
647 Florida Department of Transportation Utility Accommodation
648 Manual.
649 e. Fails to comply with applicable codes.
650 f. Fails to comply with objective design standards
651 authorized under paragraph (r).
652 12. An authority may adopt by ordinance provisions for
653 insurance coverage, indemnification, force majeure, abandonment,
654 authority liability, or authority warranties. Such provisions
655 must be reasonable and nondiscriminatory. An authority may
656 require a construction bond to secure restoration of the
657 postconstruction rights-of-way to the preconstruction condition.
658 However, such bond must be time-limited to not more than 18
659 months after the construction to which the bond applies is
660 completed. For any financial obligation required by an authority
661 allowed under this section, the authority shall accept a letter
662 of credit or similar financial instrument issued by any
663 financial institution that is authorized to do business within
664 the United States, provided that a claim against the financial
665 instrument may be made by electronic means, including by
666 facsimile. A provider of communications services may add an
667 authority to any existing bond, insurance policy, or other
668 relevant financial instrument, and the authority must accept
669 such proof of coverage without any conditions other than consent
670 to venue for purposes of any litigation to which the authority
671 is a party. An authority may not require a communications
672 services provider to indemnify it for liabilities not caused by
673 the provider, including liabilities arising from the authority’s
674 negligence, gross negligence, or willful conduct.
675 13. Collocation of a small wireless facility on an
676 authority utility pole does not provide the basis for the
677 imposition of an ad valorem tax on the authority utility pole.
678 14. An authority may reserve space on authority utility
679 poles for future public safety uses. However, a reservation of
680 space may not preclude collocation of a small wireless facility.
681 If replacement of the authority utility pole is necessary to
682 accommodate the collocation of the small wireless facility and
683 the future public safety use, the pole replacement is subject to
684 make-ready provisions and the replaced pole shall accommodate
685 the future public safety use.
686 15. A structure granted a permit and installed pursuant to
687 this subsection shall comply with chapter 333 and federal
688 regulations pertaining to airport airspace protections.
689 (e) An authority may not require any permit or other
690 approval or require fees or other charges, costs, or other
691 exactions for:
692 1. Routine maintenance, the performance of service
693 restoration work on existing facilities, or repair work,
694 including, but not limited to, emergency repairs of existing
695 facilities or extensions of such facilities for providing
696 communications services to customers;
697 2. Replacement of existing wireless facilities with
698 wireless facilities that are substantially similar or of the
699 same or smaller size; or
700 3. Installation, placement, maintenance, or replacement of
701 micro wireless facilities that are suspended on cables strung
702 between existing utility poles in compliance with applicable
703 codes by or for a communications services provider authorized to
704 occupy the rights-of-way and who is remitting taxes under
705 chapter 202. An authority may require an initial letter from or
706 on behalf of such provider, which is effective upon filing,
707 attesting that the micro wireless facility dimensions comply
708 with the limits of this subsection. The authority may not
709 require any additional filing or other information as long as
710 the provider is deploying the same, a substantially similar, or
711 a smaller size micro wireless facility equipment.
712
713 Notwithstanding this paragraph, an authority may require a
714 right-of-way permit for work that involves excavation, closure
715 of a sidewalk, or closure of a vehicular lane or parking lane,
716 unless the provider is performing service restoration on an
717 existing facility and the work is done in compliance with the
718 2017 edition of the Florida Department of Transportation Utility
719 Accommodation Manual. An authority may require notice of such
720 work within 30 days after restoration and may require an after
721 the-fact permit for work which would otherwise have required a
722 permit.
723 (f) Collocation of small wireless facilities on authority
724 utility poles is subject to the following requirements:
725 1. An authority may not enter into an exclusive arrangement
726 with any person for the right to attach equipment to authority
727 utility poles.
728 2. The rates and fees for collocations on authority utility
729 poles must be nondiscriminatory, regardless of the services
730 provided by the collocating person.
731 3. The rate to collocate small wireless facilities on an
732 authority utility pole may not exceed $150 per pole annually.
733 4. Agreements between authorities and wireless providers
734 that are in effect on July 1, 2017, and that relate to the
735 collocation of small wireless facilities in the right-of-way,
736 including the collocation of small wireless facilities on
737 authority utility poles, remain in effect, subject to applicable
738 termination provisions. The wireless provider may accept the
739 rates, fees, and terms established under this subsection for
740 small wireless facilities and utility poles that are the subject
741 of an application submitted after the rates, fees, and terms
742 become effective.
743 5. A person owning or controlling an authority utility pole
744 shall offer rates, fees, and other terms that comply with this
745 subsection. By the later of January 1, 2018, or 3 months after
746 receiving a request to collocate its first small wireless
747 facility on a utility pole owned or controlled by an authority,
748 the person owning or controlling the authority utility pole
749 shall make available, through ordinance or otherwise, rates,
750 fees, and terms for the collocation of small wireless facilities
751 on the authority utility pole which comply with this subsection.
752 a. The rates, fees, and terms must be nondiscriminatory and
753 competitively neutral and must comply with this subsection.
754 b. For an authority utility pole that supports an aerial
755 facility used to provide communications services or electric
756 service, the parties shall comply with the process for make
757 ready work under 47 U.S.C. s. 224 and implementing regulations.
758 The good faith estimate of the person owning or controlling the
759 pole for any make-ready work necessary to enable the pole to
760 support the requested collocation must include pole replacement
761 if necessary.
762 c. For an authority utility pole that does not support an
763 aerial facility used to provide communications services or
764 electric service, the authority shall provide a good faith
765 estimate for any make-ready work necessary to enable the pole to
766 support the requested collocation, including necessary pole
767 replacement, within 60 days after receipt of a complete
768 application. Make-ready work, including any pole replacement,
769 must be completed within 60 days after written acceptance of the
770 good faith estimate by the applicant. Alternatively, an
771 authority may require the applicant seeking to collocate a small
772 wireless facility to provide a make-ready estimate at the
773 applicant’s expense for the work necessary to support the small
774 wireless facility, including pole replacement, and perform the
775 make-ready work. If pole replacement is required, the scope of
776 the make-ready estimate is limited to the design, fabrication,
777 and installation of a utility pole that is substantially similar
778 in color and composition. The authority may not condition or
779 restrict the manner in which the applicant obtains, develops, or
780 provides the estimate or conducts the make-ready work subject to
781 usual construction restoration standards for work in the right
782 of-way. The replaced or altered utility pole shall remain the
783 property of the authority.
784 d. An authority may not require more make-ready work than
785 is required to meet applicable codes or industry standards. Fees
786 for make-ready work may not include costs related to preexisting
787 damage or prior noncompliance. Fees for make-ready work,
788 including any pole replacement, may not exceed actual costs or
789 the amount charged to communications services providers other
790 than wireless services providers for similar work and may not
791 include any consultant fee or expense.
792 (g) For any applications filed before the effective date of
793 ordinances implementing this subsection, an authority may apply
794 current ordinances relating to placement of communications
795 facilities in the right-of-way related to registration,
796 permitting, insurance coverage, indemnification, force majeure,
797 abandonment, authority liability, or authority warranties.
798 Permit application requirements and small wireless facility
799 placement requirements, including utility pole height limits,
800 that conflict with this subsection must be waived by the
801 authority. An authority may not institute, either expressly or
802 de facto, a moratorium, zoning-in-progress, or other mechanism
803 that would prohibit or delay the filing, receiving, or
804 processing of registrations, applications, or issuing of permits
805 or other approvals for the collocation of small wireless
806 facilities or the installation, modification, or replacement of
807 utility poles used to support the collocation of small wireless
808 facilities.
809 (h) Except as provided in this section or specifically
810 required by state law, an authority may not adopt or enforce any
811 regulation on the placement or operation of communications
812 facilities in the rights-of-way by a provider authorized by
813 state law to operate in the rights-of-way and may not regulate
814 any communications services or impose or collect any tax, fee,
815 or charge not specifically authorized under state law. This
816 paragraph does not alter any law regarding an authority’s
817 ability to regulate the relocation of facilities.
818 (i)1. In an area where an authority has required all public
819 utility lines in the rights-of-way to be placed underground, a
820 wireless provider must comply with written, objective,
821 reasonable, and nondiscriminatory requirements that prohibit new
822 utility poles used to support small wireless facilities if:
823 a. The authority, at least 90 days prior to the submission
824 of an application, has required all public utility lines to be
825 placed underground;
826 b. Structures that the authority allows to remain above
827 ground are reasonably available to wireless providers for the
828 collocation of small wireless facilities and may be replaced by
829 a wireless provider to accommodate the collocation of small
830 wireless facilities; and
831 c. A wireless provider may install a new utility pole in
832 the designated area in the right-of-way that otherwise complies
833 with this subsection and it is not reasonably able to provide
834 wireless service by collocating on a remaining utility pole or
835 other structure in the right-of-way.
836 2. For small wireless facilities installed before an
837 authority adopts requirements that public utility lines be
838 placed underground, an authority adopting such requirements
839 must:
840 a. Allow a wireless provider to maintain the small wireless
841 facilities in place subject to any applicable pole attachment
842 agreement with the pole owner; or
843 b. Allow the wireless provider to replace the associated
844 pole within 50 feet of the prior location in accordance with
845 paragraph (r).
846 (j) A wireless infrastructure provider may apply to an
847 authority to place utility poles in the public rights-of-way to
848 support the collocation of small wireless facilities. The
849 application must include an attestation that small wireless
850 facilities will be collocated on the utility pole or structure
851 and will be used by a wireless services provider to provide
852 service within 9 months after the date the application is
853 approved. The authority shall accept and process the application
854 in accordance with subparagraph (d)6. and any applicable codes
855 and other local codes governing the placement of utility poles
856 in the public rights-of-way.
857 (k) This subsection does not limit a local government’s
858 authority to enforce historic preservation zoning regulations
859 consistent with the preservation of local zoning authority under
860 47 U.S.C. s. 332(c)(7), the requirements for facility
861 modifications under 47 U.S.C. s. 1455(a), or the National
862 Historic Preservation Act of 1966, as amended, and the
863 regulations adopted to implement such laws. An authority may
864 enforce local codes, administrative rules, or regulations
865 adopted by ordinance in effect on April 1, 2017, which are
866 applicable to a historic area designated by the state or
867 authority. An authority may enforce pending local ordinances,
868 administrative rules, or regulations applicable to a historic
869 area designated by the state if the intent to adopt such changes
870 has been publicly declared on or before April 1, 2017. An
871 authority may waive any ordinances or other requirements that
872 are subject to this paragraph.
873 (l) This subsection does not authorize a person to
874 collocate or attach wireless facilities, including any antenna,
875 micro wireless facility, or small wireless facility, on a
876 privately owned utility pole, a utility pole owned by an
877 electric cooperative or a municipal electric utility, a
878 privately owned wireless support structure, or other private
879 property without the consent of the property owner.
880 (m) The approval of the installation, placement,
881 maintenance, or operation of a small wireless facility pursuant
882 to this subsection does not authorize the provision of any
883 voice, data, or video communications services or the
884 installation, placement, maintenance, or operation of any
885 communications facilities other than small wireless facilities
886 in the right-of-way.
887 (n) This subsection does not affect provisions relating to
888 pass-through providers in subsection (6).
889 (o) This subsection does not authorize a person to
890 collocate or attach small wireless facilities or micro wireless
891 facilities on a utility pole, unless otherwise permitted by
892 federal law, or erect a wireless support structure in the right
893 of-way located within a retirement community that:
894 1. Is deed restricted as housing for older persons as
895 defined in s. 760.29(4)(b);
896 2. Has more than 5,000 residents; and
897 3. Has underground utilities for electric transmission or
898 distribution.
899
900 This paragraph does not apply to the installation, placement,
901 maintenance, or replacement of micro wireless facilities on any
902 existing and duly authorized aerial communications facilities,
903 provided that once aerial facilities are converted to
904 underground facilities, any such collocation or construction
905 shall be only as provided by the municipality’s underground
906 utilities ordinance.
907 (p) This subsection does not authorize a person to
908 collocate or attach small wireless facilities or micro wireless
909 facilities on a utility pole, unless otherwise permitted by
910 federal law, or erect a wireless support structure in the right
911 of-way located within a municipality that:
912 1. Is located on a coastal barrier island as defined in s.
913 161.053(1)(b)3.;
914 2. Has a land area of less than 5 square miles;
915 3. Has fewer than 10,000 residents; and
916 4. Has, before July 1, 2017, received referendum approval
917 to issue debt to finance municipal-wide undergrounding of its
918 utilities for electric transmission or distribution.
919
920 This paragraph does not apply to the installation, placement,
921 maintenance, or replacement of micro wireless facilities on any
922 existing and duly authorized aerial communications facilities,
923 provided that once aerial facilities are converted to
924 underground facilities, any such collocation or construction
925 shall be only as provided by the municipality’s underground
926 utilities ordinance.
927 (q) This subsection does not authorize a person to
928 collocate small wireless facilities or micro wireless facilities
929 on an authority utility pole or erect a wireless support
930 structure in a location subject to covenants, conditions,
931 restrictions, articles of incorporation, and bylaws of a
932 homeowners’ association. This paragraph does not apply to the
933 installation, placement, maintenance, or replacement of micro
934 wireless facilities on any existing and duly authorized aerial
935 communications facilities.
936 (r) An authority may require wireless providers to comply
937 with objective design standards adopted by ordinance. The
938 ordinance may only require:
939 1. A new utility pole that replaces an existing utility
940 pole to be of substantially similar design, material, and color;
941 2. Reasonable spacing requirements concerning the location
942 of a ground-mounted component of a small wireless facility which
943 does not exceed 15 feet from the associated support structure;
944 or
945 3. A small wireless facility to meet reasonable location
946 context, color, camouflage, and concealment requirements,
947 subject to the limitations in this subsection; and
948 4. A new utility pole used to support a small wireless
949 facility to meet reasonable location context, color, and
950 material of the predominant utility pole type at the proposed
951 location of the new utility pole.
952
953 Such design standards under this paragraph may be waived by the
954 authority upon a showing that the design standards are not
955 reasonably compatible for the particular location of a small
956 wireless facility or utility pole or are technically infeasible
957 or that the design standards impose an excessive expense. The
958 waiver must be granted or denied within 45 days after the date
959 of the request.
960 (8)(a) Any person aggrieved by a violation of this section
961 may bring a civil action in a United States District Court or in
962 any other court of competent jurisdiction.
963 (b) The court may:
964 1. Grant temporary or permanent injunctions on terms as it
965 may deem reasonable to prevent or restrain violations of this
966 section; and
967 2. Direct the recovery of full costs, including awarding
968 reasonable attorney fees, to the party who prevails.
969 (9) All work in the authority’s rights-of-way under this
970 section must comply with the 2017 edition of the Florida
971 Department of Transportation Utility Accommodation Manual.
972 Section 2. This act shall take effect July 1, 2022.