Florida Senate - 2017 SB 596 By Senator Hutson 7-00327A-17 2017596__ 1 A bill to be entitled 2 An act relating to utilities; amending s. 337.401, 3 F.S.; providing a short title; defining terms; 4 prohibiting the Department of Transportation and 5 certain local governmental entities, collectively 6 referred to as the “authority,” from prohibiting, 7 regulating, or charging for the collocation of small 8 wireless facilities in public rights-of-way under 9 certain circumstances; specifying that an authority 10 may require permit fees only under certain 11 circumstances; requiring an authority to receive and 12 process applications for and to issue permits subject 13 to specified requirements; providing that approval of, 14 and charges by, an authority are not required for 15 routine maintenance, the replacement of certain 16 wireless facilities, or the installation, placement, 17 maintenance, or replacement of certain micro wireless 18 facilities; requiring an authority to approve the 19 collocation of small wireless facilities on authority 20 utility poles, subject to certain requirements; 21 providing requirements for rates, fees, and other 22 terms related to authority utility poles; providing 23 that specified provisions do not authorize 24 collocations of small wireless facilities on certain 25 property; prohibiting an authority from adopting or 26 enforcing any regulations on the placement or 27 operation of certain communications facilities and 28 from regulating any communications services or 29 imposing or collecting any taxes, fees, or charges not 30 specifically authorized under state law; providing an 31 effective date. 32 33 Be It Enacted by the Legislature of the State of Florida: 34 35 Section 1. Subsection (7) is added to section 337.401, 36 Florida Statutes, to read: 37 337.401 Use of right-of-way for utilities subject to 38 regulation; permit; fees.— 39 (7)(a) This subsection shall be known as the “Advanced 40 Wireless Infrastructure Deployment Act.” 41 (b) As used in this subsection, the following definitions 42 apply: 43 1. “Antenna” means communications equipment that transmits 44 or receives electromagnetic radio frequency signals used in 45 providing wireless services. 46 2. “Applicable codes” means uniform building, fire, 47 electrical, plumbing, or mechanical codes adopted by a 48 recognized national code organization, or local amendments to 49 those codes, enacted solely to address threats of destruction of 50 property or injury to persons. 51 3. “Applicant” means a person who submits an application 52 and is a wireless provider. 53 4. “Application” means a request submitted by an applicant 54 to an authority for a permit to collocate small wireless 55 facilities. 56 5. “Authority utility pole” means a utility pole owned or 57 operated by an authority in the right-of-way. 58 6. “Collocate” or “collocation” means to install, mount, 59 maintain, modify, operate, or replace one or more wireless 60 facilities on, under, within, or adjacent to a wireless support 61 structure or utility pole. 62 7. “FCC” means the Federal Communications Commission. 63 8. “Micro wireless facility” means a small wireless 64 facility having dimensions not larger than 24 inches in length, 65 15 inches in width, and 12 inches in height and that has an 66 exterior antenna, if any, no longer than 11 inches. 67 9. “Small wireless facility” means a wireless facility that 68 meets both the following qualifications: 69 a. Each antenna associated with the facility is located 70 inside an enclosure of no more than 6 cubic feet in volume or, 71 in the case of antennas that have exposed elements, each antenna 72 and all of its exposed elements could fit within an enclosure of 73 no more than 6 cubic feet in volume; and 74 b. All other wireless equipment associated with the 75 facility is cumulatively no more than 28 cubic feet in volume. 76 The following types of associated ancillary equipment are not 77 included in the calculation of equipment volume: electric 78 meters, concealment elements, telecommunications demarcation 79 boxes, ground-based enclosures, grounding equipment, power 80 transfer switches, cut-off switches, vertical cable runs for the 81 connection of power and other services, and utility poles or 82 other support structures. 83 10. “Utility pole” means a pole or similar structure that 84 is used in whole or in part to provide communications services 85 or for electric distribution, lighting, traffic control, 86 signage, or a similar function. 87 11. “Wireless facility” means equipment at a fixed location 88 which enables wireless communications between user equipment and 89 a communications network, including: 90 a. Equipment associated with wireless communications; and 91 b. Radio transceivers, antennas, wires, coaxial or fiber 92 optic cable or other cables, regular and backup power supplies, 93 and comparable equipment, regardless of technological 94 configuration. The term includes small wireless facilities. The 95 term does not include the structure or improvements on, under, 96 within, or adjacent to the structure on which the equipment is 97 collocated. 98 12. “Wireless infrastructure provider” means a person 99 certificated to provide telecommunications service in the state 100 and who builds or installs wireless communication transmission 101 equipment, wireless facilities, or wireless support structures, 102 but is not a wireless services provider. 103 13. “Wireless provider” means a wireless infrastructure 104 provider or a wireless services provider. 105 14. “Wireless services” means any services provided using 106 licensed or unlicensed spectrum, whether at a fixed location or 107 mobile, using wireless facilities. 108 15. “Wireless services provider” means a person who 109 provides wireless services. 110 16. “Wireless support structure” means a freestanding 111 structure, such as a monopole, a guyed or self-supporting tower, 112 a billboard, or another existing or proposed structure designed 113 to support or capable of supporting wireless facilities. The 114 term does not include a utility pole. 115 (c) Except as provided in this subsection, an authority may 116 not prohibit, regulate, or charge for the collocation of small 117 wireless facilities in the public rights-of-way. 118 (d) An authority may require permit fees only in accordance 119 with subsection (3). An authority shall accept applications for, 120 process, and issue permits subject to the following 121 requirements: 122 1. An authority may not directly or indirectly require an 123 applicant to perform services unrelated to the collocation for 124 which approval is sought, such as in-kind contributions to the 125 authority, including reserving fiber, conduit, or pole space for 126 the authority. 127 2. An applicant may not be required to provide more 128 information to obtain a permit than is required of electric 129 service providers and other communications service providers 130 that are not wireless service providers. 131 3. An authority may not require the placement of small 132 wireless facilities on any specific utility pole or category of 133 poles or require multiple antenna systems on a single utility 134 pole. 135 4. An authority may not limit the placement of small 136 wireless facilities by minimum separation distances or a maximum 137 height limitation; however, an authority may limit the height of 138 a small wireless facility to no more than 10 feet above the 139 tallest existing utility pole, measured from grade in place 140 within 500 feet of the proposed location of the small wireless 141 facility. If there is no utility pole within 500 feet, the 142 authority may limit the height of the small wireless facility to 143 no more than 60 feet. The height limitations do not apply to the 144 placement of any small wireless facility on a utility pole or 145 wireless support structure constructed on or before June 30, 146 2017, if the small wireless facility does not extend more than 147 10 feet above the structure. 148 5. Within 10 days after receiving an application, an 149 authority must determine and notify the applicant by electronic 150 mail as to whether the application is complete. If an 151 application is deemed incomplete, the authority must 152 specifically identify the missing information. An application 153 shall be deemed complete if the authority fails to provide 154 notification to the applicant within 10 days or when all 155 documents, information, and fees specifically enumerated in the 156 authority’s permit application form are submitted by the 157 applicant to the authority. 158 6. An application must be processed on a nondiscriminatory 159 basis. A complete application is deemed approved if the 160 authority fails to approve or deny the application within 60 161 days after receipt of the application. 162 7. The authority must notify the applicant of approval or 163 denial by electronic mail. An authority shall approve a complete 164 application unless it does not meet the authority’s applicable 165 codes. If the application is denied, the authority must specify 166 in writing the basis for denial, including the specific code 167 provisions on which the denial was based, and send the 168 documentation to the applicant by electronic mail on the day the 169 authority denies the application. The applicant may cure the 170 deficiencies identified by the authority and resubmit the 171 application within 30 days after notice of the denial is sent to 172 the applicant. The authority shall approve or deny the revised 173 application within 30 days after receipt or the application will 174 be deemed approved. Any subsequent review shall be limited to 175 the deficiencies cited in the denial. 176 8. An applicant seeking to collocate small wireless 177 facilities within the jurisdiction of a single authority may, at 178 the applicant’s discretion, file a consolidated application and 179 receive a single permit for the collocation of multiple small 180 wireless facilities. 181 (e) An authority may not require approval or require fees 182 or other charges for: 183 1. Routine maintenance; 184 2. Replacement of existing wireless facilities with 185 wireless facilities that are substantially similar or the same 186 size or smaller; or 187 3. Installation, placement, maintenance, or replacement of 188 micro wireless facilities that are suspended on messenger cables 189 strung between existing utility poles in compliance with 190 applicable codes by a communications service provider authorized 191 to occupy the rights-of-way and who is remitting taxes under 192 chapter 202. 193 (f) An authority shall approve the collocation of small 194 wireless facilities on authority utility poles, subject to the 195 following requirements: 196 1. An authority may not enter into an exclusive arrangement 197 with any person for the right to attach equipment to authority 198 utility poles. 199 2. The rates and fees for collocations on authority utility 200 poles must be nondiscriminatory, regardless of the services 201 provided by the collocating person. 202 3. The rate to collocate equipment on authority utility 203 poles may not exceed the lesser of the annual recurring rate 204 that would be permitted under rules adopted by the FCC under 47 205 U.S.C. s. 224(d) if the collocation rate were regulated by the 206 FCC or $15 per year per authority utility pole. 207 4. If the authority has an existing pole attachment rate, 208 fee, or other term that does not comply with this subsection, 209 the authority shall, no later than January 1, 2018, revise such 210 rate, fee, or term to be in compliance with this subsection. 211 5. Persons owning or controlling authority utility poles 212 shall offer rates, fees, and other terms that comply with this 213 subsection. By the later of January 1, 2018, or 3 months after 214 receiving a request to collocate its first small wireless 215 facility on a utility pole owned or controlled by an authority, 216 the person owning or controlling the authority utility pole 217 shall make available, through ordinance or otherwise, rates, 218 fees, and terms for the collocation of small wireless facilities 219 on the authority utility pole which comply with this subsection. 220 a. The rates, fees, and terms must be nondiscriminatory, 221 competitively neutral, and commercially reasonable and must 222 comply with this subsection. 223 b. For authority utility poles that support aerial 224 facilities used to provide communications services or electric 225 service, the parties shall comply with the process for make 226 ready work under 47 U.S.C. s. 224 and implementing regulations. 227 The good faith estimate of the person owning or controlling the 228 pole for any make-ready work necessary to enable the pole to 229 support the requested collocation must include pole replacement 230 if necessary. 231 c. For authority utility poles that do not support aerial 232 facilities used to provide communications services or electric 233 service, the authority shall provide a good faith estimate for 234 any make-ready work necessary to enable the pole to support the 235 requested collocation, including necessary pole replacement, 236 within 60 days after receipt of a complete application. Make 237 ready work, including any pole replacement, must be completed 238 within 60 days after written acceptance of the good faith 239 estimate by the applicant. 240 d. The authority may not require more make-ready work than 241 is required to meet applicable codes or industry standards. Fees 242 for make-ready work may not include costs related to preexisting 243 damage or prior noncompliance. Fees for make-ready work, 244 including any pole replacement, may not exceed actual costs or 245 the amount charged to communications service providers other 246 than wireless service providers for similar work and may not 247 include any consultant fees or expenses. 248 (g) This subsection does not authorize a person to 249 collocate small wireless facilities on a privately owned utility 250 pole, a privately owned wireless support structure, or other 251 private property without the consent of the property owner. 252 (h) Except as provided in this chapter or specifically 253 required by state law, an authority may not adopt or enforce any 254 regulations on the placement or operation of communications 255 facilities in the rights-of-way by any provider authorized by 256 state law to operate in the rights-of-way and shall not regulate 257 any communications services or impose or collect any taxes, 258 fees, or charges not specifically authorized under state law. 259 Section 2. This act shall take effect July 1, 2017.