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2012 Florida Statutes

F.S. 350.81
350.81 Communications services offered by governmental entities.
(1) As used in this section, the term:
(a) “Advanced service” means high-speed-Internet-access-service capability in excess of 200 kilobits per second in the upstream or the downstream direction, including any service application provided over the high-speed-access service or any information service as defined in 47 U.S.C. s. 153(20).
(b) “Cable service” has the same meaning as in 47 U.S.C. s. 522(6).
(c) “Communications services” includes any “advanced service,” “cable service,” or “telecommunications service” and shall be construed in the broadest sense.
(d) “Enterprise fund” means a separate fund to account for the operation of communications services by a local government, established and maintained in accordance with generally accepted accounting principles as prescribed by the Governmental Accounting Standards Board.
(e) “Governmental entity” means any political subdivision as defined in s. 1.01, including any county, municipality, special district, school district, utility authority or other authority or any instrumentality, agency, unit or department thereof. The term does not include an independent special district created before 1970 which has been granted express legislative authority to provide a communications service and which does not sell a communications service outside its district boundaries.
(f) “Provide,” “providing,” “provision,” or “provisioning” means offering or supplying a communications service for a fee or other consideration to a person, including any portion of the public or private provider, but does not include service by an entity to itself or to any other governmental entity.
(g) “Subscriber” means a person who receives a communications service.
(h) “Telecommunications services” means the transmission of signs, signals, writing, images, sounds, messages, data, or other information of the user’s choosing, by wire, radio, light waves, or other electromagnetic means, without change in the form or content of the information as sent and received by the user and regardless of the facilities used, including, without limitation, wireless facilities.
(2)(a) A governmental entity that proposes to provide a communications service shall hold no less than two public hearings, which shall be held not less than 30 days apart. At least 30 days before the first of the two public hearings, the governmental entity must give notice of the hearing in the predominant newspaper of general circulation in the area considered for service. At least 40 days before the first public hearing, the governmental entity must electronically provide notice to the Department of Revenue and the Public Service Commission, which shall post the notice on the department’s and the commission’s website to be available to the public. The Department of Revenue shall also send the notice by United States Postal Service to the known addresses for all dealers of communications services registered with the department under chapter 202 or provide an electronic notification, if the means are available, within 10 days after receiving the notice. The notice must include the time and place of the hearings and must state that the purpose of the hearings is to consider whether the governmental entity will provide communications services. The notice must include, at a minimum, the geographic areas proposed to be served by the governmental entity and the services, if any, which the governmental entity believes are not currently being adequately provided. The notice must also state that any dealer who wishes to do so may appear and be heard at the public hearings.
(b) At a public hearing required by this subsection, a governmental entity must, at a minimum, consider:
1. Whether the service that is proposed to be provided is currently being offered in the community and, if so, whether the service is generally available throughout the community.
2. Whether a similar service is currently being offered in the community and, if so, whether the service is generally available throughout the community.
3. If the same or similar service is not currently offered, whether any other service provider proposes to offer the same or a similar service and, if so, what assurances that service provider is willing or able to offer regarding the same or similar service.
4. The capital investment required by the government entity to provide the communications service, the estimated realistic cost of operation and maintenance and, using a full cost-accounting method, the estimated realistic revenues and expenses of providing the service and the proposed method of financing.
5. The private and public costs and benefits of providing the service by a private entity or a governmental entity, including the affect on existing and future jobs, actual economic development prospects, tax-base growth, education, and public health.
(c) At one or more of the public hearings under this subsection, the governmental entity must make available to the public a written business plan for the proposed communications service venture containing, at a minimum:
1. The projected number of subscribers to be served by the venture.
2. The geographic area to be served by the venture.
3. The types of communications services to be provided.
4. A plan to ensure that revenues exceed operating expenses and payment of principal and interest on debt within 4 years.
5. Estimated capital and operational costs and revenues for the first 4 years.
6. Projected network modernization and technological upgrade plans, including estimated costs.
(d) After making specific findings regarding the factors in paragraphs (b) and (c), the governmental entity may authorize providing a communications service by a majority recorded vote and by resolution, ordinance, or other formal means of adoption.
(e) The governing body of a governmental entity may issue one or more bonds to finance the capital costs for facilities to provide a communications service. However:
1. A governmental entity may only pledge revenues in support of the issuance of any bond to finance providing a communications service:
a. Within the county in which the governmental entity is located;
b. Within an area in which the governmental entity provides electric service outside its home county under an electric service territorial agreement approved by the Public Service Commission before the effective date of this act; or
c. If the governmental entity is a municipality or special district, within its corporate limits or in an area in which the municipality or special district provides water, wastewater, electric, or natural gas service, or within an urban service area designated in a comprehensive plan, whichever is larger, unless the municipality or special district obtains the consent by formal action of the governmental entity within the boundaries of which the municipality or special district proposes to provide service. For consent to be effective, any governmental entity from which consent is sought shall be located within the county in which the governmental entity is located or that county.
2. Revenue bonds issued in order to finance providing a communications service are not subject to the approval of the electors if the revenue bonds mature within 15 years. Revenue bonds issued to finance providing a communications service that does not mature within 15 years must be approved by the electors. The election must be conducted as specified in chapter 100.
(f) A governmental entity providing a communications service may not price any service below the cost of providing the service by subsidizing the communications service with moneys from rates paid by subscribers of a noncommunications services utility or from any other revenues. The cost standard for determining cross-subsidization is whether the total revenue from the service is less than the total long-run incremental cost of the service. Total long-run incremental cost means service-specific volume and nonvolume-sensitive costs.
(g) A governmental entity providing a communications service must comply with the requirements of s. 218.32 and shall keep separate and accurate books and records, maintained in accordance with generally accepted accounting principles, of a governmental entity’s communication service, and they shall be made available for any audits of the books and records conducted under applicable law. To facilitate equitable distribution of indirect costs, a local government shall develop and follow a cost-allocation plan, which is a procedure for allocating direct and indirect costs and which is generally developed in accordance with OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Government, published by the United States Office of Management and Budget.
(h) The governmental entity shall establish an enterprise fund to account for its operation of communications services.
(i) The governmental entity shall adopt separate operating and capital budgets for its communications services.
(j) A governmental entity may not use its powers of eminent domain under chapter 73 solely or primarily for the purpose of providing a communications service.
(k) The governmental entity shall conduct an annual review at a formal public meeting to consider the progress the governmental entity is making toward reaching its business plan goals and objectives for providing communication services. At the public meeting the governmental entity shall review the related revenues, operating expenses, and payment of interest on debt.
(l) If, after 4 years following the initiation of the provision of communications services by a governmental entity or 4 years after the effective date of this act, whichever is later, revenues do not exceed operating expenses and payment of principal and interest on the debt for a governmental entity’s provision of communications services, no later than 60 days following the end of the 4-year period a governmental entity shall hold a public hearing at which the governmental entity shall do at least one of the following:
1. Approve a plan to cease providing communications services;
2. Approve a plan to dispose of the system the governmental entity is using to provide communications services and, accordingly, to cease providing communications services;
3. Approve a plan to create a partnership with a private entity in order to achieve operations in which revenues exceed operating expenses and payment of principal and interest on debt; or
4. Approve the continuing provision of communications services by a majority vote of the governing body of the governing authority.
(3)(a) A governmental entity that provides a cable or video service shall comply with the Cable Communications Policy Act of 1984, 47 U.S.C. ss. 521 et seq., the regulations issued by the Federal Communications Commission under the Cable Communications Policy Act of 1984, 47 U.S.C. ss. 521 et seq., and all applicable state and federal rules and regulations, including, but not limited to, those provisions of chapters 202, 212, 337, and 610 that apply to a provider of the services.
(b) A governmental entity that provides a telecommunications service or advanced service must comply, if applicable, with chapter 364 and rules adopted by the Public Service Commission; chapter 166; and all applicable state and federal rules and regulations, including, but not limited to, those provisions of chapters 202, 212, and 337 which apply to a provider of the services.
(c) A governmental entity may not exercise its power or authority in any area, including zoning or land use regulation, to require any person, including residents of a particular development, to use or subscribe to any communication service of a governmental entity.
(d) A governmental entity shall apply its ordinances, rules, and policies, and exercise any authority under state or federal laws, including, but not limited to, those relating to the following subjects and without discrimination as to itself when providing a communications service or to any private provider of communications services:
1. Access to public rights-of-way; and
2. Permitting, access to, use of, and payment for use of governmental entity-owned poles. The governmental entity is subject to the same terms, conditions, and fees, if any, for access to government-owned poles which the governmental entity applies to a private provider for access.
(4)(a) If a governmental entity was providing, as of April 1, 2005, advanced services, cable services, or telecommunications services, then it is not required to comply with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k) in order to continue to provide advanced services, cable services, or telecommunications services, respectively, but it must comply with and be subject to all other provisions of this section.
(b) If a governmental entity, as of April 1, 2005, had issued debt pledging revenues from an advanced service, cable service, or telecommunications service, then it is not required to comply with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k) in order to provide advanced services, cable services, or telecommunications services, respectively, but it must comply with and be subject to all other provisions of this section.
(c) If a governmental entity, as of April 1, 2005, has purchased equipment specifically for the provisioning of advanced service, cable service, or telecommunication service, and, as of May 6, 2005, has a population of less than 7,500, and has authorized by formal action the providing of an advanced service, cable service, or telecommunication service, then it is not required to comply with paragraph (2)(a), paragraph (2)(b), paragraph (2)(c), paragraph (2)(d), sub-subparagraph (2)(e)1.c., paragraph (2)(f), or paragraph (2)(k) in order to provide advanced service, cable service, or telecommunication service, respectively, but it must comply with and be subject to all other provisions of this section.

This subsection does not relieve a governmental entity from complying with subsection (5).

(5) Notwithstanding s. 542.235 or any other law, a governmental entity that provides a communications service is subject to the same prohibitions applicable to private providers under ss. 542.18 and 542.19 as it relates to providing a communications service. This section does not limit the availability to any party of any remedy or defense under state or federal anti-trust laws.
(6) To ensure the safe and secure transportation of passengers and freight through an airport facility, as defined in s. 159.27(17), an airport authority or other governmental entity that provides or is proposing to provide communications services only within the boundaries of its airport layout plan, as defined in s. 333.01(6), to subscribers which are integral and essential to the safe and secure transportation of passengers and freight through the airport facility, is exempt from this section. An airport authority or other governmental entity that provides or is proposing to provide shared-tenant service under 1 s. 364.339, but not dial tone enabling subscribers to complete calls outside the airport layout plan, to one or more subscribers within its airport layout plan which are not integral and essential to the safe and secure transportation of passengers and freight through the airport facility is exempt from this section. An airport authority or other governmental entity that provides or is proposing to provide communications services to one or more subscribers within its airport layout plan which are not integral and essential to the safe and secure transportation of passengers and freight through the airport facility, or to one or more subscribers outside its airport layout plan, is not exempt from this section. By way of example and not limitation, the integral, essential subscribers may include airlines and emergency service entities, and the nonintegral, nonessential subscribers may include retail shops, restaurants, hotels, or rental car companies.
(7) This section does not alter or affect any provision in the charter, code, or other governing authority of a governmental entity that imposes additional or different requirements on provision of communications service by a governmental entity. Any such provisions shall apply in addition to the applicable provisions in this section.
History.s. 8, ch. 2005-132; s. 8, ch. 2007-29.
1Note.Repealed by s. 38, ch. 2011-36.