Senate Bill sb2774

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2774

    By Senator Bennett





    21-1349B-04

  1                      A bill to be entitled

  2         An act relating to the wireless emergency

  3         telephone system; amending s. 365.172, F.S.;

  4         adding definitions relating to wireless

  5         telephone communications; providing legislative

  6         intent regarding the emergency wireless

  7         telephone system; providing standards for local

  8         governments to follow when regulating the

  9         placement, construction, or modification of a

10         wireless communications facility; directing

11         local governments to approve properly completed

12         applications within specified time periods;

13         providing procedures for a provider of wireless

14         communications services to submit an

15         application for local approval; directing local

16         governments to notify a provider of the

17         deficiencies in an application; directing local

18         governments to notify a provider whether the

19         resubmission of information properly completes

20         the application; providing that any moratorium

21         affecting a wireless communications facility

22         must be adopted as if it were a zoning

23         ordinance and may continue for no longer than 6

24         months after the moratorium's adoption;

25         providing for a limited review by a local

26         government of an accessory wireless

27         communications facility; prohibiting local

28         governments from imposing certain restrictions

29         on wireless communications facilities;

30         providing that a local government may not

31         require a wireless communications provider to

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1         remove a wireless communications facility

 2         unless the facility causes a specific adverse

 3         impact on the public health, safety, or welfare

 4         of the locality; requiring a local government

 5         to amend its ordinance in order to comply with

 6         this act by a specified date; providing that a

 7         person who is adversely affected by a decision

 8         of local government relating to a wireless

 9         communications facility may bring an action

10         within a specified period; providing for the

11         computation of the time period; providing that

12         a person who is adversely affected by a

13         decision of a local government relating to a

14         wireless communications facility may bring an

15         action at any time if the person is seeking

16         only equitable relief to compel a local

17         government to comply with the procedures of the

18         act; providing an effective date.

19  

20  Be It Enacted by the Legislature of the State of Florida:

21  

22         Section 1.  Subsections (3) and (11) of section

23  365.172, Florida Statutes, are amended to read:

24         365.172  Wireless emergency telephone number "E911."--

25         (3)  DEFINITIONS.--As used in this section and ss.

26  365.173 and 365.174, the term:

27         (a)  "Active prepaid wireless telephone" means a

28  prepaid wireless telephone that has been used by the customer

29  during the month to complete a telephone call for which the

30  customer's card or balance was decremented.

31  

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1         (b)  "Administrative review" means the nondiscretionary

 2  review conducted by local governmental staff for compliance

 3  with local government ordinances, but does not include a

 4  public hearing or review of public input.

 5         (c)(b)  "Answering point" means the public safety

 6  agency that receives incoming 911 calls and dispatches

 7  appropriate public safety agencies to respond to the such

 8  calls.

 9         (d)(c)  "Automatic location identification" means the

10  capability of the E911 service which enables the automatic

11  display of information that defines the approximate geographic

12  location of the wireless telephone used to place a 911 call.

13         (e)(d)  "Automatic number identification" means the

14  capability of the E911 service which enables the automatic

15  display of the 10-digit service number used to place a 911

16  call.

17         (f)(e)  "Board" means the board of directors of the

18  Wireless 911 Board.

19         (g)  "Building-permit review" means a review for

20  compliance with building construction standards adopted by the

21  local government under chapter 553 and does not include a

22  review for compliance with land development regulations.

23         (h)  "Collocation" means the situation when more than

24  one wireless provider uses an existing structure to locate

25  antennas. The term includes the ground, platform, or roof

26  installation of equipment enclosures, cabinets, or buildings,

27  and cables, brackets, and other equipment associated with the

28  location and operation of the antennas.

29         (i)(f)  "Office" means the State Technology Office.

30         (j)(g)  "E911" is the designation for a wireless

31  enhanced 911 system or wireless enhanced 911 service that is

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  an emergency telephone system or service that provides a

 2  subscriber with wireless 911 service and, in addition, directs

 3  911 calls to appropriate public safety answering points by

 4  selective routing based on the geographical location from

 5  which the call originated, or as otherwise provided in the

 6  state plan under s. 365.171, and that provides for automatic

 7  number identification and automatic location-identification

 8  features in accordance with the requirements of the order.

 9         (k)  "Existing structure" means a structure that exists

10  at the time an application for permission to place antennas on

11  a structure is filed with a local government. The term

12  includes any structure that can support the attachment of

13  antennas, including, but not limited to, towers, buildings,

14  utility structures, light poles, water towers, clock towers,

15  bell towers, and steeples.

16         (l)(h)  "Fee" means the E911 fee imposed under

17  subsection (8).

18         (m)(i)  "Fund" means the Wireless Emergency Telephone

19  System Fund established in s. 365.173 and maintained under

20  this section for the purpose of recovering the costs

21  associated with providing 911 service or E911 service,

22  including the costs of implementing the order.

23         (n)  "Land-development regulation" means any ordinance

24  enacted by a local governing body for the regulation of any

25  aspect of development, including an ordinance governing

26  zoning, subdivisions, building construction, landscaping, tree

27  protection, or signs, or any other ordinance concerning any

28  aspect of the development of land. The term does not include

29  any building-construction standard adopted under and in

30  compliance with chapter 553.

31  

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1         (o)(j)  "Local exchange carrier" means a "competitive

 2  local exchange telecommunications company" or a "local

 3  exchange telecommunications company" as defined in s. 364.02.

 4         (p)(k)  "Local government" means any municipality,

 5  county, or political subdivision or agency of a municipality,

 6  county, or political subdivision.

 7         (q)(l)  "Mobile telephone number" or "MTN" means the

 8  telephone number assigned to a wireless telephone at the time

 9  of initial activation.

10         (r)(m)  "Order" means:

11         1.  The following orders and rules of the Federal

12  Communications Commission issued in FCC Docket No. 94-102:

13         a.  Order adopted on June 12, 1996, with an effective

14  date of October 1, 1996, the amendments to s. 20.03 and the

15  creation of s. 20.18 of Title 47 of the Code of Federal

16  Regulations adopted by the Federal Communications Commission

17  pursuant to the such order.

18         b.  Memorandum and Order No. FCC 97-402 adopted on

19  December 23, 1997.

20         c.  Order No. FCC DA 98-2323 adopted on November 13,

21  1998.

22         d.  Order No. FCC 98-345 adopted December 31, 1998.

23         2.  Orders and rules subsequently adopted by the

24  Federal Communications Commission relating to the provision of

25  wireless 911 services.

26         (s)(n)  "Provider" means a person or entity who

27  provides service and either:

28         1.  Is subject to the requirements of the order; or

29         2.  Elects to provide wireless 911 service or E911

30  service in this state.

31  

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1         (t)(o)  "Prepaid wireless telephone service" means

 2  wireless telephone service that is activated in advance by

 3  payment for a finite dollar amount of service or for a finite

 4  set of minutes that terminate either upon use by a customer

 5  and delivery by the wireless provider of an agreed-upon amount

 6  of service corresponding to the total dollar amount paid in

 7  advance or within a certain period of time following the

 8  initial purchase or activation, unless additional payments are

 9  made.

10         (u)(p)  "Public agency" means the state and any

11  municipality, county, municipal corporation, or other

12  governmental entity, public district, or public authority

13  located in whole or in part within this state which provides,

14  or has authority to provide, firefighting, law enforcement,

15  ambulance, medical, or other emergency services.

16         (v)(q)  "Public safety agency" means a functional

17  division of a public agency which provides firefighting, law

18  enforcement, medical, or other emergency services.

19         (w)(r)  "Rural county" means any county that has a

20  population of fewer than 75,000.

21         (x)(s)  "Service" means "commercial mobile radio

22  service" as provided under ss. 3(27) and 332(d) of the Federal

23  Telecommunications Act of 1996, 47 U.S.C., ss. 151 et seq.,

24  and the Omnibus Budget Reconciliation Act of 1993, Pub. L. No.

25  103-66, August 10, 1993, 107 Stat. 312. The term "service"

26  includes the term "wireless" and service provided by any

27  wireless real-time two-way wire communication device,

28  including radio-telephone communications used in cellular

29  telephone service; personal communications service; or the

30  functional or competitive equivalent of a radio-telephone

31  communications line used in cellular telephone service, a

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  personal communications service, or a network radio access

 2  line. The term does not include wireless providers that offer

 3  mainly dispatch service in a more localized, noncellular

 4  configuration; providers offering only data, one-way, or

 5  stored-voice services on an interconnected basis; providers of

 6  air-to-ground services; or public coast stations.

 7         (y)(t)  "Service number" means the unique 10-digit

 8  wireless telephone number assigned to a service subscriber.

 9         (z)(u)  "Sufficient positive balance" means a dollar

10  amount greater than or equal to the monthly wireless surcharge

11  amount.

12         (aa)  "Tower" means any structure designed primarily to

13  support a wireless antenna.

14         (bb)  "Wireless communications facility" means any

15  equipment or structure used to provide service, and includes,

16  but is not limited to, antennas, towers, equipment enclosures,

17  cabling, antenna brackets, and other equipment.

18         (cc)  "Wireless communications site" means the area on

19  the roof, structure, or ground which is designed, intended to

20  be used, or is used for the location of a wireless

21  communications facility, all related facilities and areas, and

22  any fencing and landscaping provided in association with the

23  wireless communications facility.

24         (dd)(v)  "Wireless 911 system" or "wireless 911

25  service" means an emergency telephone system or service that

26  provides a subscriber with the ability to reach an answering

27  point by dialing the digits "911." A wireless 911 system is

28  complementary to a wired 911 system as provided for in s.

29  365.171.

30         (11)  FACILITATING E911 SERVICE IMPLEMENTATION.--The

31  Legislature finds that it is in the best interest of the

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  residents of this state to have efficient and reliable

 2  wireless emergency telephone (E911) systems operating in this

 3  state. Because the Federal Government and this state have

 4  chosen to operate the wireless E911 systems through the

 5  private commercial wireless communications systems, the

 6  operation of a high-quality wireless E911 service is dependent

 7  upon an equally efficient and reliable wireless non-E911

 8  system. It is also in the best interest of this state to

 9  coordinate the wireless systems with local government's zoning

10  and land use authority in order to protect the public health,

11  safety, and welfare. Therefore, in order to balance the public

12  need for reliable wireless systems with the governmental

13  zoning and land-development regulations and notwithstanding

14  any other law or local ordinance to the contrary, the

15  following minimum standards shall apply to a local

16  government's regulation of the placement, construction, or

17  modification of a wireless communications facility:

18         (a)1.  To reduce the proliferation of new towers,

19  collocation Colocation among wireless telephone service

20  providers is encouraged by the state. An application to place

21  an antenna To further facilitate agreements among providers

22  for colocation of their facilities, any antennae and related

23  equipment to service the antennae that is being collocated

24  colocated on an existing above-ground structure that does not

25  increase the height of the existing structure or any existing

26  antenna, whichever is higher, and any placement, construction,

27  operation, and maintenance of the related equipment to serve

28  the antenna is not subject to land development regulation and

29  shall only require building-permit review pursuant to s.

30  163.3202, provided the height of the existing structure is not

31  increased. However, construction of the antennae and related

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  equipment is subject to local building regulations and any

 2  existing permits or agreements for such property, buildings,

 3  or structures. This section does not Nothing herein shall

 4  relieve the permitholder for or owner of the existing

 5  structure from of compliance with any applicable previously

 6  approved and existing condition or requirement of a permit or,

 7  agreement, or land development regulation, including any

 8  previously approved aesthetic requirements imposed by

 9  administrative order, resolution, or ordinance for development

10  of the specific wireless communications site which is not

11  inconsistent with this subsection, or law.

12         2.  To further reduce the proliferation of new towers,

13  the state encourages wireless providers to place antennas on

14  existing structures. In cases when placement of an antenna is

15  not covered by subparagraph 1., an application to place

16  antenna on any existing structure, other than a single-family

17  dwelling, and its related support equipment shall be subject

18  only to an administrative review and building-permit review.

19         3.  An existing tower, including a nonconforming tower,

20  may be increased in height in order to permit collocation. The

21  height may be increased by extending the existing tower or by

22  replacing it. The local government may limit the height

23  increase to no more than the reasonable amount necessary to

24  accommodate the collocation. The height extension or

25  replacement shall be subject only to an administrative review

26  and to a building-permit review.

27         (b)  A local government may use its land use and zoning

28  regulatory powers over the placement, construction, and

29  modification of a wireless communications facility, but only

30  to mitigate an identified adverse effect caused by the

31  placement of a proposed wireless communications facility. The

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  adverse effect must directly impact the public health, safety,

 2  or welfare and be balanced against the public benefit of a

 3  reliable E911 system.

 4         1.  A local government may not review or consider a

 5  wireless provider's business need for a specific location for

 6  a wireless communications site or the need for wireless

 7  service to be provided from a particular site. A local

 8  government may not evaluate the wireless provider's service

 9  quality or the network design of the wireless service. Local

10  government is limited when evaluating a wireless provider's

11  application for placement of a wireless communications

12  facility to issues concerning land use and zoning.

13         2.  Requirements for setback or distance separation

14  shall apply only to towers. The setback or separation required

15  of a tower may not exceed the minimum distance necessary to

16  satisfy the specific health, safety, or welfare concern that

17  is directly protected by the setback or distance separation. A

18  setback or distance separation imposed upon wireless

19  communications towers may not be greater than that imposed

20  upon similar structures such as electrical distribution and

21  transmission structures, utility poles, or light poles.

22         3.  Any height limitation placed on a wireless

23  communications facility must have a rational nexus between the

24  number of wireless communications sites determined necessary

25  to serve the locality's reasonably projected population and

26  consumer use. A local government may not restrict the height

27  of a wireless communications facility so that the height

28  restriction will likely result in an unreasonable increase in

29  the total number of antenna sites over what is necessary to

30  provide wireless services to the consumers projected to use

31  

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  the service. Local governments shall encourage towers designed

 2  for collocation.

 3         4.  If aesthetic protections or protections against

 4  visual impacts are used to justify regulating the wireless

 5  communications facility's placement, construction, or

 6  modification, the regulation adopted and applied must be

 7  directly related to the aesthetic or visual impact protection

 8  and must be the minimum necessary to provide the protection.

 9         5.  A local government's regulations as written and

10  applied must provide a reasonable opportunity for placing,

11  constructing, and modifying wireless communications facilities

12  in all parts of a local government's jurisdiction, unless it

13  can be specifically demonstrated that a prohibition of all

14  types of wireless communications facilities in a specific

15  location or area is the only manner in which to protect the

16  public health, safety, and welfare of that area.

17         6.  A local government may not impose a fee, surety, or

18  insurance requirement on a wireless provider when applying to

19  place, construct, or modify a wireless communications facility

20  if the fee, surety, or insurance requirement is not also

21  imposed on applicants seeking similar types of zoning, land

22  use, or building-permit review. The local government may not

23  recover its costs from wireless providers incurred in

24  preparing or adopting zoning or land-development regulations

25  or ordinances regulating a wireless communications facility.

26  Fees for review of zoning or land use applications by

27  consultants or experts who are routinely engaged to review

28  general zoning and land use matters on behalf of the local

29  government may be recovered, but only if the recovery is

30  routinely sought from all applicants seeking zoning or

31  land-development approvals, and any fees must be reasonable.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  Review of applications for wireless communications facilities

 2  by local government shall be restricted only to what is

 3  necessary for land use review of the application.

 4         (c)(b)  Local governments may shall not require

 5  wireless providers to provide evidence of a wireless

 6  communications facility's compliance with federal regulations.

 7  However, local governments may request shall receive evidence

 8  of proper Federal Communications Commission licensure or other

 9  evidence of FCC authorized spectrum use from a wireless

10  provider and may request the Federal Communications Commission

11  to provide information as to a wireless provider's compliance

12  with federal regulations, as authorized by federal law.

13         (d)(c)1.  A local government shall grant or deny each a

14  properly completed application for local government approval a

15  permit, including permits under paragraph (a), for the

16  placement colocation of antennas and any related equipment a

17  wireless communications facility on property, an approved

18  tower buildings, or an existing structure structures within

19  the local government's jurisdiction within 45 business days

20  after the date the properly completed application is

21  determined to be properly completed initially submitted in

22  accordance with this section the applicable local government

23  application procedures, provided that such permit complies

24  with applicable federal regulations and applicable local

25  zoning or land development regulations, including any

26  aesthetic requirements. Local building regulations shall

27  apply.

28         2.  A local government must grant or deny a properly

29  completed application to modify an existing tower to allow

30  placing an antenna and related equipment within 45 business

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  days after the date the application is determined to be

 2  properly completed in accordance with this section.

 3         3.2.  A local government shall grant or deny each a

 4  properly completed application for any applicable a permit

 5  required for the siting of a new wireless tower or antenna on

 6  property, buildings, or structures within the local

 7  government's jurisdiction within 90 business days after the

 8  date the properly completed application is determined to be

 9  properly completed initially submitted in accordance with this

10  section the applicable local government application

11  procedures, provided that such permit complies with applicable

12  federal regulations and applicable local zoning or land

13  development regulations, including any aesthetic requirements.

14  Local building regulations shall apply.

15         4.3.a.  An application is deemed submitted or

16  resubmitted on the date the application is filed with the

17  local government. The local government shall notify the permit

18  applicant within 10 20 business days after the date the

19  application is initially submitted as to whether the

20  application is, for administrative purposes only, properly

21  completed and has been properly submitted. However, the such

22  determination shall not be deemed as an approval of the

23  application. If the application is not completed in compliance

24  with the local government's application procedures, the Such

25  notification must shall indicate with specificity any

26  deficiencies that which, if cured, shall make the application

27  properly completed. Upon resubmission of information to cure

28  the stated deficiencies, the local government shall notify the

29  applicant within 10 days after the additional information is

30  submitted whether the application is properly completed or if

31  there are any remaining deficiencies that must be cured. Any

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  deficiencies not specified by the local government in the

 2  initial notice are waived.

 3         b.  If the local government fails to grant or deny a

 4  properly completed application for a permit which has been

 5  properly submitted within the timeframes set forth in this

 6  subsection, the local government application paragraph, the

 7  permit shall be deemed automatically approved and the

 8  applicant provider may proceed with placement of such

 9  facilities without interference or penalty. The timeframes

10  specified in subparagraph 3. subparagraphs 1. and 2. shall be

11  extended only to the extent that the permit has not been

12  granted or denied because the local government's procedures

13  generally applicable to all permits, require action by the

14  governing body and such action has not taken place within the

15  timeframes specified in subparagraph 3. subparagraphs 1. and

16  2. Under such circumstances, the local government must act to

17  either grant or deny the permit at its next regularly

18  scheduled meeting or, otherwise, the permit shall be deemed to

19  be automatically approved.

20         c.  To be effective, a waiver of the timeframes set

21  forth in this paragraph herein must be voluntarily agreed to

22  by the applicant and the local government. A local government

23  may request, but not require, a waiver of the timeframes by an

24  entity seeking a permit, except that, with respect to a

25  specific permit, a one-time waiver may be required in the case

26  of a declared local, state, or federal emergency that directly

27  affects the administration of all permitting activities of the

28  local government.

29         (e)  Any moratorium, or action or inaction by a local

30  government which has the effect of a moratorium, on the

31  placement, construction, or modification of a wireless

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  communications facility or a moratorium on the review of

 2  applications relating to a wireless communications facility

 3  must:

 4         1.  Be adopted in the same manner as a zoning

 5  ordinance;

 6         2.  Be shown to be necessary because of an identified

 7  emergency or a sudden significant change in circumstances; and

 8         3.  Not remain in effect for more than 6 months after

 9  adoption or creation of the moratorium.

10         (f)(d)  Any accessory additional wireless

11  communications facilities, such as communication cables,

12  adjacent accessory structures, or adjacent accessory

13  equipment, and the wireless communications site in which the

14  accessory wireless communications facility is to be located

15  which are not covered by paragraph (a) used in the provision

16  of cellular, enhanced specialized mobile radio, or personal

17  communications services, required within the existing secured

18  equipment compound within the existing site shall be deemed an

19  a permitted use or activity requiring no more than

20  administrative review and building-permit review. A

21  land-development regulation, existing permit condition, or

22  agreement may not subject an accessory wireless communications

23  facility to greater restrictions or requirements or greater

24  procedural or review processes than other accessory structures

25  in the same zoning district Local building and land

26  development regulations, including any aesthetic requirements,

27  shall apply.

28         (g)  A local government may not impose square footage

29  or height limitations on an accessory wireless communications

30  facility in excess of those required for principal buildings

31  in the same zoning district. This paragraph supersedes any

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  existing limitation imposed on a wireless communications

 2  facility by agreement, ordinance, resolution, or land

 3  development code.

 4         (h)  A local government may only regulate modification

 5  of an existing wireless communications facility if:

 6         1.  The regulation mitigates an identified adverse

 7  effect caused by the modification; and

 8         2.  The regulation affects only a materially

 9  significant change that noticeably alters the design or

10  appearance of the wireless communications facility.

11  

12  The replacement of visible equipment or structures with

13  equipment or structures of the same size, type, and appearance

14  and the replacement of equipment that is not visible from

15  outside the wireless communications site are not modifications

16  and are subject only to building-permit review.

17         (i)  A local government may not require a wireless

18  provider to remove a conforming or nonconforming wireless

19  communications facility within a stated period of time unless

20  a specific adverse impact to the public health, safety, or

21  welfare of the locality is caused by the wireless

22  communications facility. Before a local government may order

23  the removal of the wireless communications facility, the

24  wireless provider or owner of the facility shall have the

25  right to mitigate the condition that causes the adverse impact

26  and the local government must give the provider or owner a

27  reasonable time in which to mitigate the condition.

28         (j)  If a local government regulation or procedure does

29  not conform to the requirements of this section, the

30  regulation or procedure must be amended to do so by January 1,

31  2005.

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1         (k)(e)  Any other provision of law to the contrary

 2  notwithstanding, the Department of Management Services shall

 3  negotiate, in the name of the state, leases for wireless

 4  communications facilities that provide access to state

 5  government-owned property not acquired for transportation

 6  purposes, and the Department of Transportation shall

 7  negotiate, in the name of the state, leases for wireless

 8  communications facilities that provide access to property

 9  acquired for state rights-of-way. On property acquired for

10  transportation purposes, leases shall be granted in accordance

11  with s. 337.251. On other state government-owned property,

12  leases shall be granted on a space available, first-come,

13  first-served basis. Payments required by state government

14  under a lease must be reasonable and must reflect the market

15  rate for the use of the state government-owned property. The

16  Department of Management Services and the Department of

17  Transportation are authorized to adopt rules for the terms and

18  conditions and granting of any such leases.

19         (l)1.  Any person adversely affected by any action or

20  failure to act by a local government which is inconsistent

21  with this subsection may bring an action in a court of

22  competent jurisdiction within 30 days after the action or the

23  failure to act. The court shall consider the matter on an

24  expedited basis.

25         2.  Any decision by a local government relating to an

26  application for a wireless communications facility is deemed

27  final and constitutes an exhaustion of administrative

28  remedies.

29         3.  For purposes of computing the 30-day period for

30  bringing an action, the date of the local government action or

31  failure to act is the date the local government, or an agent

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  acting on behalf of the local government, issues a written

 2  decision in response to an application for approval for the

 3  siting of a wireless communications facility.

 4         4.  A person adversely affected by any action or

 5  failure to act by a local government which is inconsistent

 6  with this subsection may bring an action in equity in a court

 7  of competent jurisdiction at any time to compel the local

 8  government to comply with the procedures set forth in this

 9  subsection. Relief sought by the person under this paragraph

10  is limited solely to equitable remedies.

11         5.  Notwithstanding subparagraph 4., this paragraph

12  does not adversely affect a person's right to file a petition

13  for a writ of certiorari to review a quasi-judicial action of

14  the local government.

15         (f)  Any wireless telephone service provider may report

16  to the board no later than September 1, 2003, the specific

17  locations or general areas within a county or municipality

18  where the provider has experienced unreasonable delay to

19  locate wireless telecommunications facilities necessary to

20  provide the needed coverage for compliance with federal Phase

21  II E911 requirements using its own network. The provider shall

22  also provide this information to the specifically identified

23  county or municipality no later than September 1, 2003. Unless

24  the board receives no report that unreasonable delays have

25  occurred, the board shall, no later than September 30, 2003,

26  establish a subcommittee responsible for developing a balanced

27  approach between the ability of providers to locate wireless

28  facilities necessary to comply with federal Phase II E911

29  requirements using the carrier's own network and the desire of

30  counties and municipalities to zone and regulate land uses to

31  achieve public welfare goals. If a subcommittee is

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 2774
    21-1349B-04




 1  established, it shall include representatives from the Florida

 2  Telecommunications Industry Association, the Florida

 3  Association of Counties, and the Florida League of Cities. The

 4  subcommittee shall be charged with developing recommendations

 5  for the board and any specifically identified municipality or

 6  county to consider regarding actions to be taken for

 7  compliance for federal Phase II E911 requirements. In the

 8  annual report due to the Governor and the Legislature by

 9  February 28, 2004, the board shall include any recommendations

10  developed by the subcommittee to address compliance with

11  federal Phase II E911 requirements.

12         Section 2.  This act shall take effect July 1, 2004.

13  

14            *****************************************

15                          SENATE SUMMARY

16    Provides standards for local governments to follow when
      regulating the placement, construction, or modification
17    of a wireless communications facility. Directs local
      governments to approve properly completed applications
18    within specified time periods. Provides procedures when a
      provider of wireless communications services submits an
19    application for local approval. Provides that any
      moratorium affecting a wireless communications facility
20    must be adopted as if it were a zoning ordinance and may
      continue for no longer than 6 months after the
21    moratorium's adoption. Directs local governments not to
      impose certain restrictions on wireless communications
22    facilities. Provides that local government may not
      require a wireless communications provider to remove a
23    wireless communications facility unless the facility
      causes a specific adverse impact on the public health,
24    safety, or welfare of the locality. Provides that a
      person who is adversely affected by a decision of local
25    government relating to a wireless communications facility
      may bring an action in a court of competent jurisdiction.
26    (See bill for details.)

27  

28  

29  

30  

31  

                                  19

CODING: Words stricken are deletions; words underlined are additions.