Florida Senate - 2017 COMMITTEE AMENDMENT
Bill No. CS for CS for SB 596
Senate . House
Comm: RCS .
The Committee on Rules (Hutson) recommended the following:
1 Senate Amendment (with title amendment)
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (a) of subsection (1) of section
6 337.401, Florida Statutes, is amended, and subsection (7) is
7 added to that section, to read:
8 337.401 Use of right-of-way for utilities subject to
9 regulation; permit; fees.—
10 (1)(a) The department and local governmental entities,
11 referred to in this section and in ss. 337.402, 337.403, and
12 337.404 as the “authority,” that have jurisdiction and control
13 of public roads or publicly owned rail corridors are authorized
14 to prescribe and enforce reasonable rules or regulations with
15 reference to the placing and maintaining across, on, or within
16 the right-of-way limits of any road or publicly owned rail
17 corridors under their respective jurisdictions any electric
18 transmission, voice
telephone, telegraph, data, or other
19 communications services lines or wireless facilities; pole
20 lines; poles; railways; ditches; sewers; water, heat, or gas
21 mains; pipelines; fences; gasoline tanks and pumps; or other
22 structures referred to in this section and in ss. 337.402,
23 337.403, and 337.404 as the “utility.” The department may enter
24 into a permit-delegation agreement with a governmental entity if
25 issuance of a permit is based on requirements that the
26 department finds will ensure the safety and integrity of
27 facilities of the Department of Transportation; however, the
28 permit-delegation agreement does not apply to facilities of
29 electric utilities as defined in s. 366.02(2).
30 (7)(a) This subsection may be cited as the “Advanced
31 Wireless Infrastructure Deployment Act.”
32 (b) As used in this subsection, the term:
33 1. “Antenna” means communications equipment that transmits
34 or receives electromagnetic radio frequency signals used in
35 providing wireless services.
36 2. “Applicable codes” means uniform building, fire,
37 electrical, plumbing, or mechanical codes adopted by a
38 recognized national code organization or local amendments to
39 those codes enacted solely to address threats of destruction of
40 property or injury to persons, or local codes or ordinances
41 adopted to implement this subsection. The term includes
42 objective design standards adopted by ordinance which may
43 require that a new utility pole replacing an existing utility
44 pole be of substantially similar design, material, and color, or
45 that ground-mounted equipment meet reasonable spacing
46 requirements. The term includes objective design standards
47 adopted by ordinance which may require a small wireless facility
48 to meet reasonable location context, color, stealth, and
49 concealment requirements; however, the authority may waive the
50 design standards upon a showing that the design standards are
51 not reasonably compatible for the particular location of a small
52 wireless facility or that the design standards impose an
53 excessive expense. The waiver must be granted or denied within
54 45 days after the date of the waiver request or it is deemed
56 3. “Applicant” means a person who submits an application
57 and is a wireless provider.
58 4. “Application” means a request submitted by an applicant
59 to an authority for a permit to collocate small wireless
61 5. “Authority” means a county or municipality having
62 jurisdiction and control of the rights-of-way of any public
63 roads. The term does not include the Florida Department of
64 Transportation. The Florida Department of Transportation rights
65 of-way are excluded from this subsection.
66 6. “Authority utility pole” means a utility pole owned by
67 an authority in the right-of-way. The term does not include a
68 utility pole owned by a municipal electric utility or any
69 utility pole used to support municipally owned or operated
70 electric distribution facilities, or a utility pole located in
71 the right-of-way within:
72 a. A retirement community that:
73 (I) Is deed-restricted as housing for older persons as
74 defined in s. 760.29(4)(b);
75 (II) Has more than 5,000 residents; and
76 (III) Has underground utilities for electric transmission
77 or distribution.
78 b. A municipality that:
79 (I) Is located on a coastal barrier island as defined in s.
81 (II) Has a land area of less than 5 square miles;
82 (III) Has fewer than 10,000 residents; and
83 (IV) Which has, before the adoption of this act, received
84 referendum approval to issue debt to finance municipality-wide
85 underground utilities for electric transmission or distribution.
86 7. “Collocate” or “collocation” means to install, mount,
87 maintain, modify, operate, or replace one or more wireless
88 facilities on, under, within, or adjacent to a wireless support
89 structure or utility pole. The term does not include the
90 installation of a utility pole or wireless support structure in
91 the public rights-of-way.
92 8. “FCC” means the Federal Communications Commission.
93 9. “Micro wireless facility” means a small wireless
94 facility having dimensions no larger than 24 inches in length,
95 15 inches in width, and 12 inches in height and an exterior
96 antenna, if any, no longer than 11 inches.
97 10. “Small wireless facility” means a wireless facility
98 that meets the following qualifications:
99 a. Each antenna associated with the facility is located
100 inside an enclosure of no more than 6 cubic feet in volume or,
101 in the case of antennas that have exposed elements, each antenna
102 and all of its exposed elements could fit within an enclosure of
103 no more than 6 cubic feet in volume; and
104 b. All other wireless equipment associated with the
105 facility is cumulatively no more than 28 cubic feet in volume.
106 The following types of associated ancillary equipment are not
107 included in the calculation of equipment volume: electric
108 meters, concealment elements, telecommunications demarcation
109 boxes, ground-based enclosures, grounding equipment, power
110 transfer switches, cutoff switches, vertical cable runs for the
111 connection of power and other services, and utility poles or
112 other support structures.
113 11. “Utility pole” means a pole or similar structure used
114 in whole or in part to provide communications services or for
115 electric distribution, lighting, traffic control, signage, or a
116 similar function. The term includes the vertical support
117 structure for traffic lights, but does not include any
118 horizontal structures upon which are attached signal lights or
119 other traffic control devices and does not include any pole or
120 similar structure 15 feet in height or less unless an authority
121 grants a waiver for the pole.
122 12. “Wireless facility” means equipment at a fixed location
123 which enables wireless communications between user equipment and
124 a communications network, including radio transceivers,
125 antennas, wires, coaxial or fiber-optic cable or other cables,
126 regular and backup power supplies, and comparable equipment,
127 regardless of technological configuration, and equipment
128 associated with wireless communications. The term includes small
129 wireless facilities. The term does not include:
130 a. The structure or improvements on, under, within, or
131 adjacent to the structure on which the equipment is collocated;
132 b. Wireline backhaul facilities; or
133 c. Coaxial or fiber-optic cable that is between wireless
134 structures or utility poles or that is otherwise not immediately
135 adjacent to or directly associated with a particular antenna.
136 13. “Wireless infrastructure provider” means a person who
137 is certificated to provide telecommunications service in the
138 state and who builds or installs wireless communication
139 transmission equipment, wireless facilities, or wireless support
140 structures, but is not a wireless services provider.
141 14. “Wireless provider” means a wireless infrastructure
142 provider or a wireless services provider.
143 15. “Wireless services” means any services provided using
144 licensed or unlicensed spectrum, whether at a fixed location or
145 mobile, using wireless facilities.
146 16. “Wireless services provider” means a person who
147 provides wireless services.
148 17. “Wireless support structure” means a freestanding
149 structure, such as a monopole, a guyed or self-supporting tower
150 or another existing or proposed structure designed to support or
151 capable of supporting wireless facilities. The term does not
152 include a utility pole.
153 (c) Except as provided in this subsection, an authority may
154 not prohibit, regulate, or charge for the collocation of small
155 wireless facilities in the public rights-of-way.
156 (d) An authority may require a registration process and
157 permit fees in accordance with subsection (3). An authority
158 shall accept applications for permits and shall process and
159 issue permits subject to the following requirements:
160 1. An authority may not directly or indirectly require an
161 applicant to perform services unrelated to the collocation for
162 which approval is sought, such as in-kind contributions to the
163 authority, including reserving fiber, conduit, or pole space for
164 the authority.
165 2. An applicant may not be required to provide more
166 information to obtain a permit than is necessary to demonstrate
167 the applicant’s compliance with applicable codes for the
168 placement of small wireless facilities in the locations
169 identified in the application.
170 3. An authority may not require the placement of small
171 wireless facilities on any specific utility pole or category of
172 poles or require multiple antenna systems on a single utility
174 4. An authority may not limit the placement of small
175 wireless facilities by minimum separation distances; however,
176 within 14 days from the date of filing the application, an
177 authority may request that the proposed location of a small
178 wireless facility be moved to another location in the right-of
179 way and placed upon an alternative authority utility pole or
180 support structure or placed upon a new utility pole. The
181 authority and applicant may negotiate the alternate location,
182 including any objective design standards, for 30 days from the
183 date of the request. At the conclusion of the negotiation
184 period, if the applicant accepts the alternative location, the
185 applicant must notify the authority and the application shall be
186 deemed granted for any new location for which there is agreement
187 and all other locations in the application. If no agreement is
188 reached, the applicant must notify the authority and the
189 authority must grant or deny the original application within 90
190 days from the date the application was filed. A request for an
191 alternative location, an acceptance of an alternate location, or
192 any rejection of an alternative location must be in writing and
193 provided by electronic mail.
194 5. An authority may limit the height of a small wireless
195 facility to no more than 10 feet above the utility pole or
196 structure upon which the small wireless facility is to be
197 collocated. Unless waived by an authority, the height for a new
198 utility pole may be limited to the tallest existing utility pole
199 located in the right-of-way, measured from grade in place within
200 500 feet of the proposed location of the small wireless
201 facility. If there is no utility pole within 500 feet, the
202 authority may limit the height of the utility pole to no more
203 than 50 feet.
204 6. Except as provided in subparagraphs 4. and 5., the
205 installation of a utility pole in the public rights-of-way
206 designed to support a small wireless facility is subject to
207 authority rules or regulations governing the placement of
208 utility poles in the public rights-of-way and is subject to the
209 application review timeframes in in this subsection.
210 7. Within 14 days after receiving an application, an
211 authority must determine and notify the applicant by electronic
212 mail as to whether the application is complete. If an
213 application is deemed incomplete, the authority must
214 specifically identify the missing information. An application is
215 deemed complete if the authority fails to provide notification
216 to the applicant within 14 days or when all documents,
217 information, and fees specifically enumerated in the authority’s
218 permit application form are submitted by the applicant to the
220 8. An application must be processed on a nondiscriminatory
221 basis. A complete application is deemed approved if an authority
222 fails to approve or deny the application within 60 days after
223 receipt of the application. If an authority does not use the 30
224 day negotiation period provided in subparagraph 4., the parties
225 may mutually agree to extend the 60-day application review
226 period. The authority must grant or deny the application at the
227 end of the extended period. A permit issued pursuant to an
228 approved application remains effective for 1 year unless
229 extended by the authority.
230 9. An authority must notify the applicant of approval or
231 denial by electronic mail. An authority must approve a complete
232 application unless it does not meet the authority’s applicable
233 codes. If the application is denied, the authority must specify
234 in writing the basis for denial, including the specific code
235 provisions on which the denial was based, and send the
236 documentation to the applicant by electronic mail on the day the
237 authority denies the application. The applicant may cure the
238 deficiencies identified by the authority and resubmit the
239 application within 30 days after notice of the denial is sent to
240 the applicant. The authority must approve or deny the revised
241 application within 30 days after receipt or the application is
242 deemed approved. Any subsequent review shall be limited to the
243 deficiencies cited in the denial.
244 10. An applicant seeking to collocate small wireless
245 facilities within the jurisdiction of a single authority may, at
246 the applicant’s discretion, file a consolidated application and
247 receive a single permit for the collocation of no more than 30
248 small wireless facilities. If the application includes multiple
249 small wireless facilities, an authority may remove small
250 wireless facility collocations from the application and treat
251 separately small wireless facility collocations for which
252 incomplete information has been received or which are denied.
253 11. An authority may deny a proposed collocation of a small
254 wireless facility in the public rights-of-way if the proposed
256 a. Materially interferes with the safe operation of traffic
257 control equipment.
258 b. Materially interferes with sight lines or clear zones
259 for transportation, pedestrians, or public safety purposes.
260 c. Materially interferes with compliance with the Americans
261 with Disabilities Act or similar federal or state standards
262 regarding pedestrian access or movement.
263 d. Materially fails to comply with the 2010 edition of the
264 Florida Department of Transportation Utility Accommodation
266 e. Materially fails to comply with applicable codes.
267 12. An authority may adopt by ordinance provisions for
268 registration, permitting, insurance coverage, indemnification,
269 performance bonds, security funds, force majeure, abandonment,
270 authority liability, or authority warranties. Such provisions
271 must be reasonable and nondiscriminatory.
272 13. Collocation of a small wireless facility on an
273 authority utility pole may not provide the basis for the
274 imposition of an ad valorem tax on the authority utility pole.
275 14. An authority may reserve space on authority utility
276 poles for future public safety uses. However, a reservation of
277 space may not preclude collocation of a small wireless facility.
278 If replacement of the authority utility pole is necessary to
279 accommodate the collocation of the small wireless facility and
280 the future public safety use, the pole replacement is subject to
281 make-ready provisions and the replaced pole shall accommodate
282 the future public safety use.
283 15. Any structure granted a permit and installed pursuant
284 to this subsection must comply with chapter 333 and federal
285 regulations pertaining to airport airspace protections.
286 (e) An authority may not require approval of or impose fees
287 or other charges for:
288 1. Routine maintenance;
289 2. Replacement of existing wireless facilities with
290 wireless facilities that are substantially similar or of the
291 same or smaller size; or
292 3. Installation, placement, maintenance, or replacement of
293 micro wireless facilities suspended on cables strung between
294 existing utility poles in compliance with applicable codes by a
295 communications service provider authorized to occupy the rights
296 of-way and who is remitting taxes under chapter 202.
298 However, notwithstanding this paragraph, an authority may
299 require a right-of-way permit for work that involves excavation,
300 closing a sidewalk, or closing a vehicular lane.
301 (f) Collocation of small wireless facilities on authority
302 utility poles is subject to the following requirements:
303 1. An authority may not enter into an exclusive arrangement
304 with any person for the right to attach equipment to authority
305 utility poles.
306 2. The rates and fees for collocations on authority utility
307 poles must be nondiscriminatory, regardless of the services
308 provided by the collocating person.
309 3. The rate to collocate small wireless facilities on
310 authority utility poles may not exceed $100 per year.
311 4. Agreements between authorities and wireless providers
312 which are in effect on July 1, 2017, and which relate to the
313 collocation of small wireless facilities in the right-of-way,
314 including the collocation of small wireless facilities on
315 authority utility poles, remain in effect, subject to applicable
316 termination provisions. The wireless provider may accept the
317 rates, fees, and terms established under this subsection for
318 small wireless facilities and utility poles that are the subject
319 of an application submitted after the rates, fees, and terms
320 become effective.
321 5. A person owning or controlling an authority utility pole
322 shall offer rates, fees, and other terms that comply with this
323 subsection. By the later of January 1, 2018, or 3 months after
324 receiving a request to collocate its first small wireless
325 facility on a utility pole owned or controlled by an authority,
326 the person owning or controlling the authority utility pole
327 shall make available, through ordinance or otherwise, rates,
328 fees, and terms for the collocation of small wireless facilities
329 on the authority utility pole which comply with this subsection.
330 a. The rates, fees, and terms must be nondiscriminatory,
331 competitively neutral, and must comply with this subsection.
332 b. For an authority utility pole that supports an aerial
333 facility used to provide communications services or electric
334 service, the parties shall comply with the process for make
335 ready work under 47 U.S.C. s. 224 and implementing regulations.
336 The good faith estimate of the person owning or controlling the
337 pole for any make-ready work necessary to enable the pole to
338 support the requested collocation must include pole replacement
339 if necessary.
340 c. For an authority utility pole that does not support an
341 aerial facility used to provide communications services or
342 electric service, the authority shall provide a good faith
343 estimate for any make-ready work necessary to enable the pole to
344 support the requested collocation, including necessary pole
345 replacement, within 60 days after receipt of a complete
346 application. Make-ready work, including any pole replacement,
347 must be completed within 60 days after written acceptance of the
348 good faith estimate by the applicant. Alternatively, an
349 authority may require the applicant seeking to collocate a small
350 wireless facility to provide a make-ready estimate at the
351 applicant’s expense for the work necessary to support the small
352 wireless facility, including pole replacement, and to perform
353 the make-ready work. If pole replacement is required, the scope
354 of the make-ready estimate is limited to the design,
355 fabrication, and installation of a utility pole that is
356 substantially similar in color and composition. The authority
357 may not impose conditions on or restrict the manner in which the
358 applicant obtains, develops, or provides the estimate or
359 conducts the make-ready work subject to usual construction
360 restoration standards for work in the right-of-way. The replaced
361 or altered utility pole shall remain the property of the
363 d. An authority may not require more make-ready work than
364 is required to meet applicable codes or industry standards. Fees
365 for make-ready work may not include costs related to preexisting
366 damage or prior noncompliance. Fees for make-ready work,
367 including any pole replacement, may not exceed actual costs or
368 the amount charged to communications service providers other
369 than wireless services providers for similar work and may not
370 include any consultant fee or expense.
371 (g) For any applications filed before the effective dates
372 of ordinances implementing this subsection, an authority may
373 apply current ordinances regulating the placement of
374 communications facilities in the right-of-way, including
375 registration, permitting, insurance coverage, indemnification,
376 performance bonds, security funds, force majeure, abandonment,
377 authority liability, or authority warranties. Permit application
378 requirements and small wireless facility placement requirements,
379 including utility pole height limits, which conflict with this
380 subsection shall be waived by the authority.
381 (h) Except as provided in this section or specifically
382 required by state law, an authority may not adopt or enforce any
383 regulation on the placement or operation of communications
384 facilities in the rights-of-way by a provider authorized by
385 state law to operate in the rights-of-way and may not regulate
386 any communications services or impose or collect any tax, fee,
387 or charge not specifically authorized under state law.
388 (i) A wireless provider shall, in relation to a small
389 wireless facility, utility pole, or wireless support structure
390 in the public rights-of-way, comply with nondiscriminatory
391 undergrounding requirements of the authority which prohibit
392 above-ground structures in public rights-of-way. Any such
393 requirements may be waived by the relevant authority.
394 (j) A wireless infrastructure provider may apply to an
395 authority to place utility poles in the public rights-of-way to
396 support the collocation of small wireless facilities. The
397 application must include an attestation that small wireless
398 facilities will be collocated on the utility pole or structure
399 and small wireless facilities will be used by a wireless
400 services provider to provide service within 9 months from the
401 date the application is granted. An authority shall accept and
402 process the application in accordance with subparagraph (7)(d)6.
403 and any applicable codes and other local codes governing the
404 placement of utility poles in the public rights-of-way.
405 (k) This subsection does not limit a local government’s
406 authority to enforce historic preservation zoning regulations
407 consistent with the preservation of local zoning authority under
408 47 U.S.C s. 332(c)(7), the requirements for facility
409 modifications under 47 U.S.C. s. 1455(a), or the National
410 Historic Preservation Act of 1966, as amended, and the
411 regulations adopted to implement these laws. An authority may
412 enforce local codes adopted by ordinance in effect on April 1,
413 2017, which are applicable to a historic area designated by the
414 state or authority and subject to waiver by the authority.
415 (l) This subsection does not authorize a person to
416 collocate or attach wireless facilities, including any antenna,
417 micro wireless facility, or small wireless facility, on a
418 privately owned utility pole, a utility pole owned by an
419 electric cooperative or a municipal electric utility, a
420 privately owned wireless support structure, or other private
421 property without the consent of the property owner.
422 (m) The approval of the installation, placement,
423 maintenance, or operation of a small wireless facility pursuant
424 to this subsection may not be construed to authorize the
425 provision of any voice, data, or video communications services
426 or the installation, placement, maintenance, or operation of any
427 communications facilities other than small wireless facilities
428 in the right-of-way.
429 (n) This subsection does not affect the provisions of
430 subsection (6) relating to pass-through providers.
431 (o) This subsection does not authorize a person to
432 collocate or attach small wireless facilities or micro wireless
433 facilities on a utility pole unless otherwise permitted by
434 federal law, or to erect a wireless support structure in the
435 right-of-way located within a retirement community that:
436 1. Is deed-restricted as housing for older persons as
437 defined in s. 760.29(4)(b);
438 2. Has more than 5,000 residents; and
439 3. Has underground utilities for electric transmission or
442 Nothing in this paragraph applies to the installation of micro
443 wireless facilities on any existing and duly authorized aerial
444 communications facilities, provided that once aerial facilities
445 are converted to underground, any such collocation or
446 construction shall be only as provided by the municipality’s
447 underground utilities ordinance.
448 (p) This subsection does not authorize a person to
449 collocate or attach small wireless facilities or micro wireless
450 facilities on a utility pole unless otherwise permitted by
451 federal law, or to erect a wireless support structure in the
452 right-of-way located within a municipality that:
453 1. Is located on a coastal barrier island as defined in s.
455 2. Has a land area of less than 5 square miles;
456 3. Has fewer than 10,000 residents; and
457 4. Which has, before the adoption of this act, received
458 referendum approval to issue debt to finance municipality-wide
459 undergrounding of its utilities for electric transmission or
462 Nothing in this paragraph applies to the installation of micro
463 wireless facilities on any existing and duly authorized aerial
464 communications facilities, provided that once aerial facilities
465 are converted to underground, any such collocation or
466 construction shall be only as provided by the municipality’s
467 underground utilities ordinance.
468 Section 2. This act shall take effect July 1, 2017.
470 ================= T I T L E A M E N D M E N T ================
471 And the title is amended as follows:
472 Delete everything before the enacting clause
473 and insert:
474 A bill to be entitled
475 An act relating to utilities; amending s. 337.401,
476 F.S.; authorizing the Department of Transportation and
477 certain local governmental entities to prescribe and
478 enforce reasonable rules or regulations with reference
479 to the placing and maintaining across, on, or within
480 the right-of-way limits of any road or publicly owned
481 rail corridors under their respective jurisdictions
482 any voice or data communications services lines or
483 wireless facilities; providing a short title; defining
484 terms; prohibiting a county or municipality having
485 jurisdiction and control of the rights-of-way of any
486 public road, referred to as the “authority,” from
487 prohibiting, regulating, or charging for the
488 collocation of small wireless facilities in public
489 rights-of-way under certain circumstances; authorizing
490 an authority to require a registration process and
491 permit fees only under certain circumstances;
492 requiring an authority to receive and process
493 applications for permits and to issue such permits,
494 subject to specified requirements; prohibiting an
495 authority from requiring approval of or imposing fees
496 or other charges for routine maintenance, the
497 replacement of certain wireless facilities, or the
498 installation, placement, maintenance, or replacement
499 of certain micro wireless facilities; providing an
500 exception; providing requirements for the collocation
501 of small wireless facilities on authority utility
502 poles; providing requirements for rates, fees, and
503 other terms related to authority utility poles;
504 authorizing an authority to apply current ordinances
505 regulating placement of communications facilities in
506 the right-of-way, including registration, permitting,
507 insurance coverage, indemnification, performance
508 bonds, security funds, force majeure, abandonment,
509 authority liability, or authority warranties for
510 certain applications; providing that certain permit
511 application requirements and small wireless facility
512 placement requirements shall be waived by the
513 authority; prohibiting an authority from adopting or
514 enforcing any regulation on the placement or operation
515 of certain communications facilities, from regulating
516 any communications services, or from imposing or
517 collecting any tax, fee, or charge not specifically
518 authorized under state law; requiring a wireless
519 provider to comply with certain nondiscriminatory
520 undergrounding requirements of the authority;
521 authorizing the authority to waive any such
522 requirements; authorizing a wireless infrastructure
523 provider to apply to an authority to place utility
524 poles in the public rights-of-way to support the
525 collocation of small wireless facilities; providing
526 requirements for such application; requiring the
527 authority to accept and process the application,
528 subject to certain requirements; providing
529 construction; authorizing an authority to enforce
530 local codes adopted by ordinance in effect on a
531 specified date which are applicable to a historic area
532 designated by the state or authority and subject to
533 waiver by the authority; providing an effective date.