| 1 | A bill to be entitled |
| 2 | An act relating to statewide cable television and video |
| 3 | service franchises; providing a short title; amending s. |
| 4 | 202.11, F.S.; providing a definition; amending s. 202.24, |
| 5 | F.S.; prohibiting counties and municipalities from |
| 6 | negotiating terms and conditions relating to cable and |
| 7 | video services; deleting authorization to negotiate; |
| 8 | revising application to existing ordinances or franchise |
| 9 | agreements; amending s. 337.401, F.S.; deleting |
| 10 | authorization for counties and municipalities to award |
| 11 | cable service franchises and a restriction that cable |
| 12 | service companies not operate without such a franchise; |
| 13 | amending s. 337.4061, F.S.; revising definitions; creating |
| 14 | ss. 610.102, 610.103, 610.104, 610.105, 610.106, 610.107, |
| 15 | 610.108, 610.109, 610.112, 610.113, 610.114, 610.115, |
| 16 | 610.116, and 610.117, F.S.; designating the Department of |
| 17 | State as the authorizing authority; providing definitions; |
| 18 | requiring state authorization to provide cable and video |
| 19 | services; providing requirements and procedures; providing |
| 20 | for fees; providing duties and responsibilities of the |
| 21 | Department of State; providing application procedures and |
| 22 | requirements; providing for issuing certificates of |
| 23 | franchise authority; providing eligibility requirements |
| 24 | and criteria for a certificate; authorizing the department |
| 25 | to adopt rules; providing for an application form; |
| 26 | providing for a fee; prohibiting the department from |
| 27 | imposing taxes, fees, or charges on a cable or video |
| 28 | service provider to issue a certificate; prohibiting |
| 29 | imposing buildout, construction, and deployment |
| 30 | requirements on a certificateholder; requiring |
| 31 | certificateholders to make cable and video service |
| 32 | available at certain public buildings under certain |
| 33 | circumstances; imposing certain customer service |
| 34 | requirements on cable service providers; requiring the |
| 35 | Department of Agriculture and Consumer Services to receive |
| 36 | customer service complaints; requiring provision of |
| 37 | public, educational, and governmental access channels or |
| 38 | capacity equivalent; providing criteria, requirements, and |
| 39 | procedures; providing exceptions; providing |
| 40 | responsibilities of municipalities and counties relating |
| 41 | to such channels; providing for enforcement; providing |
| 42 | requirements for and limitations on counties and |
| 43 | municipalities relating to access to public right-of-way; |
| 44 | prohibiting counties and municipalities from imposing |
| 45 | additional requirements on certificateholders; authorizing |
| 46 | counties and municipalities to require permits of |
| 47 | certificateholders relating to public right-of-way; |
| 48 | providing permit criteria and requirements; prohibiting |
| 49 | discrimination among cable and video service subscribers; |
| 50 | providing for enforcement; providing for determinations of |
| 51 | violations; providing for enforcement of compliance by |
| 52 | certificateholders; requiring the Office of Program Policy |
| 53 | Analysis and Government Accountability to report to the |
| 54 | Legislature on the status of competition in the cable and |
| 55 | video service industry; providing report requirements; |
| 56 | providing severability; repealing s. 166.046, F.S., |
| 57 | relating to definitions and minimum standards for cable |
| 58 | television franchises imposed upon counties and |
| 59 | municipalities; amending ss. 350.81 and 364.0361, F.S.; |
| 60 | conforming cross-references; providing an effective date. |
| 61 |
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| 62 | Be It Enacted by the Legislature of the State of Florida: |
| 63 |
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| 64 | Section 1. This act may be cited as the "Consumer Choice |
| 65 | Act of 2007." |
| 66 | Section 2. Subsection (24) is added to section 202.11, |
| 67 | Florida Statutes, to read: |
| 68 | 202.11 Definitions.--As used in this chapter: |
| 69 | (24) "Video service" has the same meaning as that provided |
| 70 | in s. 610.103. |
| 71 | Section 3. Paragraphs (a) and (c) of subsection (2) of |
| 72 | section 202.24, Florida Statutes, are amended to read: |
| 73 | 202.24 Limitations on local taxes and fees imposed on |
| 74 | dealers of communications services.-- |
| 75 | (2)(a) Except as provided in paragraph (c), each public |
| 76 | body is prohibited from: |
| 77 | 1. Levying on or collecting from dealers or purchasers of |
| 78 | communications services any tax, charge, fee, or other imposition |
| 79 | on or with respect to the provision or purchase of communications |
| 80 | services. |
| 81 | 2. Requiring any dealer of communications services to enter |
| 82 | into or extend the term of a franchise or other agreement that |
| 83 | requires the payment of a tax, charge, fee, or other imposition. |
| 84 | 3. Adopting or enforcing any provision of any ordinance or |
| 85 | agreement to the extent that such provision obligates a dealer of |
| 86 | communications services to charge, collect, or pay to the public |
| 87 | body a tax, charge, fee, or other imposition. |
| 88 |
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| 89 | Municipalities and counties may not Each municipality and county |
| 90 | retains authority to negotiate all terms and conditions of a |
| 91 | cable service franchise allowed by federal and state law except |
| 92 | those terms and conditions related to franchise fees or and the |
| 93 | definition of gross revenues or other definitions or |
| 94 | methodologies related to the payment or assessment of franchise |
| 95 | fees on providers of cable or video services. |
| 96 | (c) This subsection does not apply to: |
| 97 | 1. Local communications services taxes levied under this |
| 98 | chapter. |
| 99 | 2. Ad valorem taxes levied pursuant to chapter 200. |
| 100 | 3. Occupational license taxes levied under chapter 205. |
| 101 | 4. "911" service charges levied under chapter 365. |
| 102 | 5. Amounts charged for the rental or other use of property |
| 103 | owned by a public body which is not in the public rights-of-way |
| 104 | to a dealer of communications services for any purpose, |
| 105 | including, but not limited to, the placement or attachment of |
| 106 | equipment used in the provision of communications services. |
| 107 | 6. Permit fees of general applicability which are not |
| 108 | related to placing or maintaining facilities in or on public |
| 109 | roads or rights-of-way. |
| 110 | 7. Permit fees related to placing or maintaining facilities |
| 111 | in or on public roads or rights-of-way pursuant to s. 337.401. |
| 112 | 8. Any in-kind requirements, institutional networks, or |
| 113 | contributions for, or in support of, the use or construction of |
| 114 | public, educational, or governmental access facilities allowed |
| 115 | under federal law and imposed on providers of cable or video |
| 116 | service pursuant to any existing ordinance or an existing |
| 117 | franchise agreement granted by each municipality or county, under |
| 118 | which ordinance or franchise agreement service is provided prior |
| 119 | to July 1, 2007, or as permitted under chapter 610. Nothing in |
| 120 | this subparagraph shall prohibit the ability of providers of |
| 121 | cable or video service to recover such expenses as allowed under |
| 122 | federal law. |
| 123 | 9. Special assessments and impact fees. |
| 124 | 10. Pole attachment fees that are charged by a local |
| 125 | government for attachments to utility poles owned by the local |
| 126 | government. |
| 127 | 11. Utility service fees or other similar user fees for |
| 128 | utility services. |
| 129 | 12. Any other generally applicable tax, fee, charge, or |
| 130 | imposition authorized by general law on July 1, 2000, which is |
| 131 | not specifically prohibited by this subsection or included as a |
| 132 | replaced revenue source in s. 202.20. |
| 133 | Section 4. Paragraphs (a), (b), (e), and (f) of subsection |
| 134 | (3) of section 337.401, Florida Statutes, are amended to read: |
| 135 | 337.401 Use of right-of-way for utilities subject to |
| 136 | regulation; permit; fees.-- |
| 137 | (3)(a)1. Because of the unique circumstances applicable to |
| 138 | providers of communications services, including, but not limited |
| 139 | to, the circumstances described in paragraph (e) and the fact |
| 140 | that federal and state law require the nondiscriminatory |
| 141 | treatment of providers of telecommunications services, and |
| 142 | because of the desire to promote competition among providers of |
| 143 | communications services, it is the intent of the Legislature that |
| 144 | municipalities and counties treat providers of communications |
| 145 | services in a nondiscriminatory and competitively neutral manner |
| 146 | when imposing rules or regulations governing the placement or |
| 147 | maintenance of communications facilities in the public roads or |
| 148 | rights-of-way. Rules or regulations imposed by a municipality or |
| 149 | county relating to providers of communications services placing |
| 150 | or maintaining communications facilities in its roads or rights- |
| 151 | of-way must be generally applicable to all providers of |
| 152 | communications services and, notwithstanding any other law, may |
| 153 | not require a provider of communications services, except as |
| 154 | otherwise provided in subparagraph 2., to apply for or enter into |
| 155 | an individual license, franchise, or other agreement with the |
| 156 | municipality or county as a condition of placing or maintaining |
| 157 | communications facilities in its roads or rights-of-way. In |
| 158 | addition to other reasonable rules or regulations that a |
| 159 | municipality or county may adopt relating to the placement or |
| 160 | maintenance of communications facilities in its roads or rights- |
| 161 | of-way under this subsection, a municipality or county may |
| 162 | require a provider of communications services that places or |
| 163 | seeks to place facilities in its roads or rights-of-way to |
| 164 | register with the municipality or county and to provide the name |
| 165 | of the registrant; the name, address, and telephone number of a |
| 166 | contact person for the registrant; the number of the registrant's |
| 167 | current certificate of authorization issued by the Florida Public |
| 168 | Service Commission, or the Federal Communications Commission, or |
| 169 | the Department of State; and proof of insurance or self-insuring |
| 170 | status adequate to defend and cover claims. |
| 171 | 2. Notwithstanding the provisions of subparagraph 1., a |
| 172 | municipality or county may, as provided by 47 U.S.C. s. 541, |
| 173 | award one or more franchises within its jurisdiction for the |
| 174 | provision of cable service, and a provider of cable service shall |
| 175 | not provide cable service without such franchise. Each |
| 176 | municipality and county retains authority to negotiate all terms |
| 177 | and conditions of a cable service franchise allowed by federal |
| 178 | law and s. 166.046, except those terms and conditions related to |
| 179 | franchise fees and the definition of gross revenues or other |
| 180 | definitions or methodologies related to the payment or assessment |
| 181 | of franchise fees and permit fees as provided in paragraph (c) on |
| 182 | providers of cable services. A municipality or county may |
| 183 | exercise its right to require from providers of cable service in- |
| 184 | kind requirements, including, but not limited to, institutional |
| 185 | networks, and contributions for, or in support of, the use or |
| 186 | construction of public, educational, or governmental access |
| 187 | facilities to the extent permitted by federal law. A provider of |
| 188 | cable service may exercise its right to recover any such expenses |
| 189 | associated with such in-kind requirements, to the extent |
| 190 | permitted by federal law. |
| 191 | (b) Registration described in paragraph subparagraph (a)1. |
| 192 | does not establish a right to place or maintain, or priority for |
| 193 | the placement or maintenance of, a communications facility in |
| 194 | roads or rights-of-way of a municipality or county. Each |
| 195 | municipality and county retains the authority to regulate and |
| 196 | manage municipal and county roads or rights-of-way in exercising |
| 197 | its police power. Any rules or regulations adopted by a |
| 198 | municipality or county which govern the occupation of its roads |
| 199 | or rights-of-way by providers of communications services must be |
| 200 | related to the placement or maintenance of facilities in such |
| 201 | roads or rights-of-way, must be reasonable and nondiscriminatory, |
| 202 | and may include only those matters necessary to manage the roads |
| 203 | or rights-of-way of the municipality or county. |
| 204 | (e) The authority of municipalities and counties to require |
| 205 | franchise fees from providers of communications services, with |
| 206 | respect to the provision of communications services, is |
| 207 | specifically preempted by the state, except as otherwise provided |
| 208 | in subparagraph (a)2., because of unique circumstances applicable |
| 209 | to providers of communications services when compared to other |
| 210 | utilities occupying municipal or county roads or rights-of-way. |
| 211 | Providers of communications services may provide similar services |
| 212 | in a manner that requires the placement of facilities in |
| 213 | municipal or county roads or rights-of-way or in a manner that |
| 214 | does not require the placement of facilities in such roads or |
| 215 | rights-of-way. Although similar communications services may be |
| 216 | provided by different means, the state desires to treat providers |
| 217 | of communications services in a nondiscriminatory manner and to |
| 218 | have the taxes, franchise fees, and other fees paid by providers |
| 219 | of communications services be competitively neutral. |
| 220 | Municipalities and counties retain all existing authority, if |
| 221 | any, to collect franchise fees from users or occupants of |
| 222 | municipal or county roads or rights-of-way other than providers |
| 223 | of communications services, and the provisions of this subsection |
| 224 | shall have no effect upon this authority. The provisions of this |
| 225 | subsection do not restrict the authority, if any, of |
| 226 | municipalities or counties or other governmental entities to |
| 227 | receive reasonable rental fees based on fair market value for the |
| 228 | use of public lands and buildings on property outside the public |
| 229 | roads or rights-of-way for the placement of communications |
| 230 | antennas and towers. |
| 231 | (f) Except as expressly allowed or authorized by general |
| 232 | law and except for the rights-of-way permit fees subject to |
| 233 | paragraph (c), a municipality or county may not levy on a |
| 234 | provider of communications services a tax, fee, or other charge |
| 235 | or imposition for operating as a provider of communications |
| 236 | services within the jurisdiction of the municipality or county |
| 237 | which is in any way related to using its roads or rights-of-way. |
| 238 | A municipality or county may not require or solicit in-kind |
| 239 | compensation, except as otherwise provided in s. 202.24(2)(c)8. |
| 240 | or s. 610.109 subparagraph (a)2. Nothing in this paragraph shall |
| 241 | impair any ordinance or agreement in effect on May 22, 1998, or |
| 242 | any voluntary agreement entered into subsequent to that date, |
| 243 | which provides for or allows in-kind compensation by a |
| 244 | telecommunications company. |
| 245 | Section 5. Section 337.4061, Florida Statutes, is amended |
| 246 | to read: |
| 247 | 337.4061 Definitions; unlawful use of state-maintained road |
| 248 | right-of-way by nonfranchised cable and video television |
| 249 | services.-- |
| 250 | (1) As used in this section, the term: |
| 251 | (a) "Cable service" means: |
| 252 | 1. The one-way transmission to subscribers of video |
| 253 | programming or any other programming service; and |
| 254 | 2. Subscriber interaction, if any, which is required for |
| 255 | the selection of such video programming or other programming |
| 256 | service. |
| 257 | (b) "Cable system" means a facility, consisting of a set of |
| 258 | closed transmission paths and associated signal generation, |
| 259 | reception, and control equipment that is designed to provide |
| 260 | cable service which includes video programming and which is |
| 261 | provided to multiple subscribers within a community, but such |
| 262 | term does not include: |
| 263 | 1. A facility that serves only to retransmit the television |
| 264 | signals of one or more television broadcast stations; |
| 265 | 2. A facility that serves only subscribers in one or more |
| 266 | multiple-unit dwellings under common ownership, control, or |
| 267 | management, unless such facility or facilities use any public |
| 268 | right-of-way; |
| 269 | 3. A facility that serves subscribers without using any |
| 270 | public right-of-way. |
| 271 | 4.3. A facility of a common carrier that is subject, in |
| 272 | whole or in part, to the provisions of 47 U.S.C. s. 201 et seq., |
| 273 | except the specific bandwidths or wavelengths used by that such |
| 274 | facility shall be considered a cable system only to the extent |
| 275 | such bandwidths or wavelengths are facility is used in the |
| 276 | transmission of video programming directly to subscribers, unless |
| 277 | the extent of such use is solely to provide interactive on-demand |
| 278 | services, in which case the use of such bandwidths or wavelengths |
| 279 | is not a cable system; or |
| 280 | 5.4. Any facilities of any electric utility used solely for |
| 281 | operating its electric utility systems. |
| 282 | (c) "Franchise" means an initial authorization or renewal |
| 283 | thereof issued by a franchising authority, whether such |
| 284 | authorization is designated as a franchise, permit, license, |
| 285 | resolution, contract, certificate, agreement, or otherwise, which |
| 286 | authorizes the construction or operation of a cable system or |
| 287 | video service provider network facilities. |
| 288 | (d) "Franchising authority" means any governmental entity |
| 289 | empowered by federal, state, or local law to grant a franchise. |
| 290 | (e) "Person" means an individual, partnership, association, |
| 291 | joint stock company, trust, corporation, or governmental entity. |
| 292 | (f) "Video programming" means programming provided by or |
| 293 | generally considered comparable to programming provided by a |
| 294 | television broadcast station or cable system. |
| 295 | (g) "Video service" has the same meaning as that provided |
| 296 | in s. 610.103. |
| 297 | (2) It is unlawful to use the right-of-way of any state- |
| 298 | maintained road, including appendages thereto, and also |
| 299 | including, but not limited to, rest areas, wayside parks, boat- |
| 300 | launching ramps, weigh stations, and scenic easements, to provide |
| 301 | for cable or video service over facilities purposes within a |
| 302 | geographic area subject to a valid existing franchise for cable |
| 303 | or video service, unless the cable or video service provider |
| 304 | system using such right-of-way holds a franchise from a franchise |
| 305 | authority the municipality or county for the area in which the |
| 306 | right-of-way is located. |
| 307 | (3) A violation of this section shall be deemed a violation |
| 308 | of s. 337.406. |
| 309 | Section 6. Sections 610.102, 610.103, 610.104, 610.105, |
| 310 | 610.106, 610.107, 610.108, 610.109, 610.112, 610.113, 610.114, |
| 311 | 610.115, 610.116, and 610.117, Florida Statutes, are created to |
| 312 | read: |
| 313 | 610.102 Department of State authority to issue statewide |
| 314 | cable and video franchise.--The department shall be designated as |
| 315 | the franchising authority for a state-issued franchise for the |
| 316 | provision of cable or video service. A municipality or county may |
| 317 | not grant a new franchise for the provision of cable or video |
| 318 | service within its jurisdiction. |
| 319 | 610.103 Definitions.--As used in ss. 610.102-610.116: |
| 320 | (1) "Cable service" means: |
| 321 | (a) The one-way transmission to subscribers of video |
| 322 | programming or any other programming service. |
| 323 | (b) Subscriber interaction, if any, that is required for |
| 324 | the selection of such video programming or other programming |
| 325 | service. |
| 326 | (2) "Cable service provider" means a person that provides |
| 327 | cable service over a cable system. |
| 328 | (3) "Cable system" means a facility consisting of a set of |
| 329 | closed transmission paths and associated signal generation, |
| 330 | reception, and control equipment that is designed to provide |
| 331 | cable service that includes video programming and that is |
| 332 | provided to multiple subscribers within a community, but such |
| 333 | term does not include: |
| 334 | (a) A facility that serves only to retransmit the |
| 335 | television signals of one or more television broadcast stations; |
| 336 | (b) A facility that serves only subscribers in one or more |
| 337 | multiple-unit dwellings under common ownership, control, or |
| 338 | management, unless such facility or facilities use any public |
| 339 | right-of-way; |
| 340 | (c) A facility that serves subscribers without using any |
| 341 | public right-of-way; |
| 342 | (d) A facility of a common carrier that is subject, in |
| 343 | whole or in part, to the provisions of 47 U.S.C. s. 201 et seq., |
| 344 | except that the specific bandwidths or wavelengths over such |
| 345 | facility shall be considered a cable system only to the extent |
| 346 | such bandwidths or wavelengths are used in the transmission of |
| 347 | video programming directly to subscribers, unless the extent of |
| 348 | such use is solely to provide interactive on-demand services, in |
| 349 | which case it is not a cable system; or |
| 350 | (e) Any facilities of any electric utility used solely for |
| 351 | operating its electric utility systems. |
| 352 | (4) "Certificateholder" means a cable or video service |
| 353 | provider that has been issued and holds a certificate of |
| 354 | franchise authority from the department. |
| 355 | (5) "Department" means the Department of State. |
| 356 | (6) "Franchise" means an initial authorization or renewal |
| 357 | of an authorization, regardless of whether the authorization is |
| 358 | designated as a franchise, permit, license, resolution, contract, |
| 359 | certificate, agreement, or otherwise, to construct and operate a |
| 360 | cable system or video service provider network facilities in the |
| 361 | public right-of-way. |
| 362 | (7) "Franchise authority" means any governmental entity |
| 363 | empowered by federal, state, or local law to grant a franchise. |
| 364 | (8) "Incumbent cable service provider" means the cable |
| 365 | service provider serving the largest number of cable subscribers |
| 366 | in a particular municipal or county franchise area on July 1, |
| 367 | 2007. |
| 368 | (9) "Public right-of-way" means the area on, below, or |
| 369 | above a public roadway, highway, street, sidewalk, alley, or |
| 370 | waterway, including, without limitation, a municipal, county, |
| 371 | state, district, or other public roadway, highway, street, |
| 372 | sidewalk, alley, or waterway. |
| 373 | (10) "Video programming" means programming provided by, or |
| 374 | generally considered comparable to programming provided by, a |
| 375 | television broadcast station as set forth in 47 U.S.C. s. |
| 376 | 522(20). |
| 377 | (11) "Video service" means video programming services |
| 378 | provided through wireline facilities located at least in part in |
| 379 | the public rights-of-way without regard to delivery technology, |
| 380 | including Internet protocol technology. This definition does not |
| 381 | include any video programming provided by a commercial mobile |
| 382 | service provider as defined in 47 U.S.C. s. 332(d), video |
| 383 | programming provided via a cable service or video programming |
| 384 | provided as part of, and via, a service that enables end users to |
| 385 | access content, information, electronic mail, or other services |
| 386 | offered over the Internet. |
| 387 | (12) "Video service provider" means a video programming |
| 388 | distributor that distributes video programming services through |
| 389 | wireline facilities located at least in part in the public |
| 390 | rights-of-way without regard to delivery technology. This term |
| 391 | does not include a cable service provider. |
| 392 | 610.104 State authorization to provide cable or video |
| 393 | service.-- |
| 394 | (1) An entity or person seeking to provide cable or video |
| 395 | service in this state after July 1, 2007, shall file an |
| 396 | application for a state-issued certificate of franchise authority |
| 397 | with the department as required by this section. An entity or |
| 398 | person providing cable or video service under an unexpired |
| 399 | franchise agreement with a municipality or county as of July 1, |
| 400 | 2007, is not subject to this subsection with respect to providing |
| 401 | service in such municipality or county until the franchise |
| 402 | agreement expires, except as provided by subsection (2) and s. |
| 403 | 610.105(4). An entity or person providing cable or video service |
| 404 | may seek authorization from the department to provide service in |
| 405 | areas where the entity or person currently does not have an |
| 406 | existing franchise agreement as of July 1, 2007. |
| 407 | (2) Beginning July 1, 2007, a cable or video service |
| 408 | provider that is not an incumbent cable or video service provider |
| 409 | and provides cable or video service to less than 40 percent of |
| 410 | the total cable and video service subscribers in a particular |
| 411 | franchise area may elect to terminate an existing municipal or |
| 412 | county franchise and seek a state-issued certificate of franchise |
| 413 | authority by providing written notice to the Secretary of State |
| 414 | and the affected municipality or county after July 1, 2007. The |
| 415 | municipal or county franchise is terminated under this subsection |
| 416 | on the date the department issues the state-issued certificate of |
| 417 | franchise authority. |
| 418 | (3) Before the 10th business day after an applicant submits |
| 419 | the affidavit, the department shall notify the applicant for a |
| 420 | state-issued certificate of franchise authority whether the |
| 421 | applicant's affidavit described by subsection (4) is complete. If |
| 422 | the department denies the application, the department must |
| 423 | specify with particularity the reasons for the denial and permit |
| 424 | the applicant to amend the application to cure any deficiency. |
| 425 | The department shall act upon such amended application within 5 |
| 426 | business days. |
| 427 | (4) The department shall issue a certificate of franchise |
| 428 | authority to offer cable or video service before the 15th |
| 429 | business day after receipt of a completed affidavit submitted by |
| 430 | an applicant and signed by an officer or general partner of the |
| 431 | applicant affirming: |
| 432 | (a) That the applicant has filed or will timely file with |
| 433 | the Federal Communications Commission all forms required by that |
| 434 | agency in advance of offering cable or video service in this |
| 435 | state; |
| 436 | (b) That the applicant agrees to comply with all applicable |
| 437 | federal and state laws and regulations, to the extent that such |
| 438 | state laws and rules are not in conflict with or superseded by |
| 439 | the provisions of this chapter or other applicable state law; |
| 440 | (c) That the applicant agrees to comply with all lawful |
| 441 | state laws and rules and municipal and county ordinances and |
| 442 | regulations regarding the placement and maintenance of |
| 443 | communications facilities in the public rights-of-way that are |
| 444 | generally applicable to providers of communications services in |
| 445 | accordance with s. 337.401; |
| 446 | (d) A description of the service area for which the |
| 447 | applicant seeks the certificate of franchise authority, which |
| 448 | need not be coextensive with municipal, county, or other |
| 449 | political boundaries; |
| 450 | (e) The location of the applicant's principal place of |
| 451 | business and the names of the applicant's principal executive |
| 452 | officers; and |
| 453 | (f) That the applicant will file with the department a |
| 454 | notice of commencement of service within 5 days after first |
| 455 | providing service in each service area described in paragraph |
| 456 | (d). |
| 457 | (5) If the department fails to act on the application |
| 458 | within 30 business days after receiving the application, the |
| 459 | application shall be deemed approved by the department without |
| 460 | further action. |
| 461 | (6) The certificate of franchise authority issued by the |
| 462 | department shall contain: |
| 463 | (a) A grant of authority to provide cable or video service |
| 464 | as requested in the application. |
| 465 | (b) A grant of authority to construct, maintain, and |
| 466 | operate facilities through, upon, over, and under any public |
| 467 | right-of-way or waters. |
| 468 | (c) A statement that the grant of authority is subject to |
| 469 | lawful operation of the cable or video service by the applicant |
| 470 | or its successor in interest. |
| 471 | (7) A certificateholder that seeks to include additional |
| 472 | service areas in its current certificate shall file notice with |
| 473 | the department that reflects the new service area or areas to be |
| 474 | served and shall file with the department a notice of |
| 475 | commencement of service within 5 days after first providing |
| 476 | service in each such additional area. |
| 477 | (8) The certificate of franchise authority issued by the |
| 478 | department is fully transferable to any successor in interest to |
| 479 | the applicant to which the certificate is initially granted. A |
| 480 | notice of transfer shall be filed with the department and the |
| 481 | relevant municipality or county within 14 business days following |
| 482 | the completion of such transfer. |
| 483 | (9) The certificate of franchise authority issued by the |
| 484 | department may be terminated by the cable or video service |
| 485 | provider by submitting notice to the department. |
| 486 | (10) An applicant may challenge a denial of an application |
| 487 | by the department in a court of competent jurisdiction through a |
| 488 | petition for mandamus. |
| 489 | (11) The department shall adopt any procedural rules |
| 490 | pursuant to ss. 120.536(1) and 120.54 necessary to implement this |
| 491 | section. |
| 492 | (12) The department may establish a standard application |
| 493 | form, in which case the application shall be on such form and |
| 494 | must be accompanied by a fee established by the department, not |
| 495 | to exceed $150. |
| 496 | 610.105 Eligibility for state-issued franchise.-- |
| 497 | (1) Except as provided in s. 610.104(1) and (2) and |
| 498 | subsection (4), an incumbent cable service provider that has an |
| 499 | existing, unexpired franchise to provide cable service with |
| 500 | respect to a municipality or county as of July 1, 2007, is not |
| 501 | eligible to apply for a state-issued certificate of franchise |
| 502 | authority under this chapter as to that municipality or county |
| 503 | until the expiration date of the existing franchise agreement. |
| 504 | (2) For purposes of this section, an incumbent cable |
| 505 | service provider will be deemed to have or have had a franchise |
| 506 | to provide cable service in a specific municipality or county if |
| 507 | any affiliate or successor entity of the cable service provider |
| 508 | has or had an unexpired franchise agreement granted by that |
| 509 | specific municipality or county as of July 1, 2007. |
| 510 | (3) The term "affiliate or successor entity" in this |
| 511 | section refers to an entity receiving, obtaining, or operating |
| 512 | under a franchise that directly or indirectly owns or controls, |
| 513 | is owned or controlled by, or is under common ownership or |
| 514 | control with the cable service provider. |
| 515 | (4) Notwithstanding subsection (1), an incumbent cable |
| 516 | service provider may elect to terminate an existing municipal or |
| 517 | county franchise and apply for a state-issued certificate of |
| 518 | franchise authority with respect to such municipality or county |
| 519 | if another cable or video service provider has been granted a |
| 520 | state-issued certificate of franchise authority for a service |
| 521 | area located in whole or in part within the service area covered |
| 522 | by the existing municipal or county franchise and such |
| 523 | certificateholder has commenced providing service in such area. |
| 524 | The incumbent cable service provider shall provide at the time of |
| 525 | filing its application for a state-issued certificate of |
| 526 | franchise authority written notice of its intent to terminate its |
| 527 | existing franchise under this subsection to the department and to |
| 528 | the affected municipality or county. The municipal or county |
| 529 | franchise shall be terminated under this section on the date the |
| 530 | department issues to the incumbent cable service provider the |
| 531 | state-issued certificate of franchise authority to provide |
| 532 | service in such municipality or county franchise area to the |
| 533 | incumbent cable service provider. |
| 534 | 610.106 Franchise fee prohibited.--The department may not |
| 535 | impose any taxes, fees, charges, or other impositions on a cable |
| 536 | or video service provider as a condition for the issuance of a |
| 537 | state-issued certificate of franchise authority. No municipality |
| 538 | or county may impose any taxes, fees, charges, or other exactions |
| 539 | on certificateholders in connection with use of public right-of- |
| 540 | way as a condition of a certificateholder doing business in the |
| 541 | municipality or county, or otherwise, except such taxes, fees, |
| 542 | charges, or other exactions permitted by chapter 202 and s. |
| 543 | 337.401(6). |
| 544 | 610.107 Buildout.--No franchising authority, state agency, |
| 545 | or political subdivision may impose any buildout, system |
| 546 | construction, or service deployment requirements on a |
| 547 | certificateholder. |
| 548 | 610.108 Customer service standards.-- |
| 549 | (1) An incumbent cable service provider shall comply with |
| 550 | customer service requirements reasonably comparable to the |
| 551 | standards in 47 C.F.R. s. 76.309(c) until there are two or more |
| 552 | providers offering service, excluding direct-to-home satellite |
| 553 | service, in the incumbent service provider's relevant service |
| 554 | area. |
| 555 | (2) Beginning on July 1, 2009, for all providers of cable |
| 556 | service in municipalities and counties that, as of January 1, |
| 557 | 2007, have an office or department dedicated to responding to |
| 558 | cable service quality complaints, all such complaints shall be |
| 559 | handled on and after July 1, 2009, by the Department of |
| 560 | Agriculture and Consumer Services. Until that time, cable service |
| 561 | quality complaints shall continue to be handled by the |
| 562 | municipality or county. This provision shall not be construed to |
| 563 | permit the municipality or county to impose customer service |
| 564 | standards in conflict with this section. |
| 565 | (3) The Department of Agriculture and Consumer Services |
| 566 | shall receive service quality complaints from customers of a |
| 567 | certificateholder and shall address such complaints in an |
| 568 | expeditious manner by assisting in the resolution of such |
| 569 | complaint between the complainant and the certificateholder. The |
| 570 | Department of Agriculture and Consumer Services shall adopt any |
| 571 | procedural rules pursuant to ss. 120.536(1) and 120.54 necessary |
| 572 | to implement this section. |
| 573 | 610.109 Public, educational, and governmental access |
| 574 | channels.-- |
| 575 | (1) A certificateholder, not later than 12 months following |
| 576 | a request by a municipality or county within whose jurisdiction |
| 577 | the certificateholder is providing cable or video service, shall |
| 578 | designate a sufficient amount of capacity on its network to allow |
| 579 | the provision of public, educational, and governmental access |
| 580 | channels for noncommercial programming as set forth in this |
| 581 | section, except that a holder of a state-issued certificate of |
| 582 | authority granted pursuant to s. 610.105 shall be required to |
| 583 | satisfy the public, educational, and government access channel |
| 584 | capacity obligations specified in this section upon issuance of |
| 585 | such certificate for any service area covered by such certificate |
| 586 | that is located within the service area that was covered by the |
| 587 | cable provider's terminated franchise. |
| 588 | (2) A certificateholder shall designate a sufficient amount |
| 589 | of capacity on its network to allow the provision of a comparable |
| 590 | number of public, educational, and governmental access channels |
| 591 | or capacity equivalent that a municipality or county has |
| 592 | activated under the incumbent cable service provider's franchise |
| 593 | agreement as of July 1, 2007. For the purposes of this section, a |
| 594 | public, educational, or governmental channel is deemed activated |
| 595 | if the channel is being used for public, educational, or |
| 596 | governmental programming within the municipality for at least 10 |
| 597 | hours per day. |
| 598 | (3) If a municipality or county did not have public, |
| 599 | educational, or governmental access channels activated under the |
| 600 | incumbent cable service provider's franchise agreement as of July |
| 601 | 1, 2007, not later than 12 months following a request by the |
| 602 | municipality or county within whose jurisdiction a |
| 603 | certificateholder is providing cable or video service, the cable |
| 604 | or video service provider shall furnish: |
| 605 | (a) Up to three public, educational, or governmental |
| 606 | channels or capacity equivalent for a municipality or county with |
| 607 | a population of at least 50,000. |
| 608 | (b) Up to two public, educational, or governmental channels |
| 609 | or capacity equivalent for a municipality or county with a |
| 610 | population of less than 50,000. |
| 611 | (4) Any public, educational, or governmental channel |
| 612 | provided pursuant to this section that is not used by the |
| 613 | municipality or county for at least 10 hours a day shall no |
| 614 | longer be made available to the municipality or county but may be |
| 615 | programmed at the cable or video service provider's discretion. |
| 616 | At such time as the municipality or county can certify to the |
| 617 | cable or video service provider a schedule for at least 10 hours |
| 618 | of daily programming, the cable or video service provider shall |
| 619 | restore the previously lost channel but shall be under no |
| 620 | obligation to carry that channel on a basic or analog tier. |
| 621 | (5) If a municipality or county has not used the number of |
| 622 | access channels or capacity equivalent permitted by subsection |
| 623 | (3), access to the additional channels or capacity equivalent |
| 624 | allowed in subsection (3) shall be provided upon 12 month's |
| 625 | written notice if the municipality or county meets the following |
| 626 | standard: if a municipality or county has one active public, |
| 627 | educational, or governmental channel and wishes to activate an |
| 628 | additional public, educational, or governmental channel, the |
| 629 | initial channel shall be considered to be substantially used when |
| 630 | 12 hours are programmed on that channel each calendar day. In |
| 631 | addition, at least 40 percent of the 12 hours of programming for |
| 632 | each business day on average over each calendar quarter must be |
| 633 | nonrepeat programming. Nonrepeat programming shall include the |
| 634 | first three videocastings of a program. If a municipality or |
| 635 | county is entitled to three public, educational, or governmental |
| 636 | channels under subsection (3) and has in service two active |
| 637 | public, educational, or governmental channels, each of the two |
| 638 | active channels shall be considered to be substantially used when |
| 639 | 12 hours are programmed on each channel each calendar day and at |
| 640 | least 50 percent of the 12 hours of programming for each business |
| 641 | day on average over each calendar quarter is nonrepeat |
| 642 | programming for three consecutive calendar quarters. |
| 643 | (6) The operation of any public, educational, or |
| 644 | governmental access channel or capacity equivalent provided under |
| 645 | this section shall be the responsibility of the municipality or |
| 646 | county receiving the benefit of such channel or capacity |
| 647 | equivalent, and a certificateholder bears only the responsibility |
| 648 | for the transmission of such channel content. A certificateholder |
| 649 | shall be responsible for providing the connectivity to each |
| 650 | public, educational, or governmental access channel distribution |
| 651 | point up to the first 200 feet from the certificateholder's |
| 652 | activated cable or video transmission system. |
| 653 | (7) The municipality or county shall ensure that all |
| 654 | transmissions, content, or programming to be transmitted over a |
| 655 | channel or facility by a certificateholder are provided or |
| 656 | submitted to the cable or video service provider in a manner or |
| 657 | form that is capable of being accepted and transmitted by a |
| 658 | provider without any requirement for additional alteration or |
| 659 | change in the content by the provider, over the particular |
| 660 | network of the cable or video service provider, which is |
| 661 | compatible with the technology or protocol used by the cable or |
| 662 | video service provider to deliver services. The provision of |
| 663 | public, educational, or governmental content to the provider |
| 664 | constitutes authorization for the provider to carry such content, |
| 665 | including, at the provider's option, authorization to carry the |
| 666 | content beyond the jurisdictional boundaries of the municipality |
| 667 | or county. |
| 668 | (8) Where technically feasible, a certificateholder and an |
| 669 | incumbent cable service provider shall use reasonable efforts to |
| 670 | interconnect their networks for the purpose of providing public, |
| 671 | educational, and governmental programming. Interconnection may be |
| 672 | accomplished by direct cable, microwave link, satellite, or other |
| 673 | reasonable method of connection. Certificateholders and incumbent |
| 674 | cable service providers shall negotiate in good faith and |
| 675 | incumbent cable service providers may not withhold |
| 676 | interconnection of public, educational, and governmental |
| 677 | channels. |
| 678 | (9) A certificateholder is not required to interconnect |
| 679 | for, or otherwise to transmit, public, educational, and |
| 680 | governmental content that is branded with the logo, name, or |
| 681 | other identifying marks of another cable or video service |
| 682 | provider, and a municipality or county may require a cable or |
| 683 | video service provider to remove its logo, name, or other |
| 684 | identifying marks from public, educational, and governmental |
| 685 | content that is to be made available to another provider. |
| 686 | (10) A court of competent jurisdiction shall have exclusive |
| 687 | jurisdiction to enforce any requirement under this section. |
| 688 | 610.112 Nondiscrimination by municipality or county.-- |
| 689 | (1) A municipality or county shall allow a |
| 690 | certificateholder to install, construct, and maintain a network |
| 691 | within a public right-of-way and shall provide a |
| 692 | certificateholder with open, comparable, nondiscriminatory, and |
| 693 | competitively neutral access to the public right-of-way in |
| 694 | accordance with the provisions of s. 337.401. All use of a public |
| 695 | right-of-way by a certificateholder is nonexclusive. |
| 696 | (2) A municipality or county may not discriminate against a |
| 697 | certificateholder regarding: |
| 698 | (a) The authorization or placement of a network in a public |
| 699 | right-of-way; |
| 700 | (b) Access to a building or other property; or |
| 701 | (c) Utility pole attachment terms. |
| 702 | 610.113 Limitation on local authority.-- |
| 703 | (1) A municipality or county may not impose additional |
| 704 | requirements on a certificateholder, including, but not limited |
| 705 | to, financial, operational, and administrative requirements, |
| 706 | except as expressly permitted by this chapter. A municipality or |
| 707 | county may not impose on activities of a certificateholder a |
| 708 | requirement: |
| 709 | (a) That particular business offices be located in the |
| 710 | municipality or county; |
| 711 | (b) Regarding the filing of reports and documents with the |
| 712 | municipality or county that are not required by state or federal |
| 713 | law and that are not related to the use of the public right-of- |
| 714 | way. Reports and documents other than schematics indicating the |
| 715 | location of facilities for a specific site that are provided in |
| 716 | the normal course of the municipality's or county's permitting |
| 717 | process, that are authorized by s. 337.401 for communications |
| 718 | services providers, or that are otherwise required in the normal |
| 719 | course of such permitting process shall not be considered related |
| 720 | to the use of the public right-of-way for communications service |
| 721 | providers. A municipality or county may not request information |
| 722 | concerning the capacity or technical configuration of a |
| 723 | certificateholder's facilities; |
| 724 | (c) For the inspection of a certificateholder's business |
| 725 | records; or |
| 726 | (d) For the approval of transfers of ownership or control |
| 727 | of a certificateholder's business, except that a municipality or |
| 728 | county may require a certificateholder to provide notice of a |
| 729 | transfer within a reasonable time. |
| 730 | (2) Notwithstanding any other provision of law, a |
| 731 | municipality or county may require the issuance of a permit in |
| 732 | accordance with and subject to s. 337.401 to a certificateholder |
| 733 | that is placing and maintaining facilities in or on a public |
| 734 | right-of-way in the municipality or county. In accordance with s. |
| 735 | 337.402, the permit may require the permitholder to be |
| 736 | responsible, at the permitholder's expense, for any damage |
| 737 | resulting from the issuance of such permit and for restoring the |
| 738 | public right-of-way to a substantially similar condition to that |
| 739 | of the public right-of-way before installation of such |
| 740 | facilities. The terms of the permit shall be consistent with |
| 741 | construction permits issued to other providers of communications |
| 742 | services placing or maintaining communications facilities in a |
| 743 | public right-of-way. |
| 744 | 610.114 Discrimination prohibited.-- |
| 745 | (1) The purpose of this section is to prevent |
| 746 | discrimination among potential residential subscribers. |
| 747 | (2) Pursuant to 47 U.S.C. s. 541(a)(3), a certificateholder |
| 748 | may not deny access to service to any group of potential |
| 749 | residential subscribers because of the income of the residents in |
| 750 | the local area in which such group resides. |
| 751 | (3) An affected person may seek enforcement of subsection |
| 752 | (2) by initiating a proceeding with the Department of Agriculture |
| 753 | and Consumer Services pursuant to s. 570.544. |
| 754 | (4) For purposes of determining whether a certificateholder |
| 755 | has violated subsection (2), cost, density, distance, and |
| 756 | technological or commercial limitations shall be taken into |
| 757 | account. Use of an alternative technology that provides |
| 758 | comparable content, service, and functionality may not be |
| 759 | considered a violation of subsection (2). The inability to serve |
| 760 | an end user because a certificateholder is prohibited from |
| 761 | placing its own facilities in a building or property is not a |
| 762 | violation of subsection (2). This section may not be construed to |
| 763 | authorize any buildout requirements on a certificateholder. |
| 764 | (5) The Department of Agriculture and Consumer Services |
| 765 | shall adopt any procedural rules pursuant to ss. 120.536(1) and |
| 766 | 120.54 necessary to implement this section. |
| 767 | 610.115 Compliance.--If a certificateholder is found by a |
| 768 | court of competent jurisdiction not to be in compliance with the |
| 769 | requirements of this chapter, the certificateholder shall have a |
| 770 | reasonable period of time, as specified by the court, to cure |
| 771 | such noncompliance. |
| 772 | 610.116 Reports to the Legislature.--The Office of Program |
| 773 | Policy Analysis and Government Accountability shall submit to the |
| 774 | President of the Senate, the Speaker of the House of |
| 775 | Representatives, and the majority and minority leaders of the |
| 776 | Senate and House of Representatives, by December 1, 2009, a |
| 777 | report on the status of competition in the cable and video |
| 778 | service industry, including, by each municipality and county, the |
| 779 | number of cable and video service providers, the number of cable |
| 780 | and video subscribers served, the number of areas served by fewer |
| 781 | than two cable or video service providers, the trend in cable and |
| 782 | video service prices, and the identification of any patterns of |
| 783 | service as they impact demographic and income groups. |
| 784 | 610.117 Severability.--If any provision of ss. 610.102- |
| 785 | 610.102-610.116 or the application thereof to any person or |
| 786 | circumstance is held invalid, such invalidity shall not affect |
| 787 | other provisions or application of ss. 610.102-610.116 that can |
| 788 | be given effect without the invalid provision or application, and |
| 789 | to this end the provisions of ss. 610.102-610.116 are severable. |
| 790 | Section 7. Section 166.046, Florida Statutes, is repealed. |
| 791 | Section 8. Paragraph (a) of subsection (3) of section |
| 792 | 350.81, Florida Statutes, is amended to read: |
| 793 | 350.81 Communications services offered by governmental |
| 794 | entities.-- |
| 795 | (3)(a) A governmental entity that provides a cable service |
| 796 | shall comply with the Cable Communications Policy Act of 1984, 47 |
| 797 | U.S.C. ss. 521 et seq., the regulations issued by the Federal |
| 798 | Communications Commission under the Cable Communications Policy |
| 799 | Act of 1984, 47 U.S.C. ss. 521 et seq., and all applicable state |
| 800 | and federal rules and regulations, including, but not limited to, |
| 801 | s. 166.046 and those provisions of chapters 202, 212, and 337, |
| 802 | and 610 that which apply to a provider of the services. |
| 803 | Section 9. Section 364.0361, Florida Statutes, is amended |
| 804 | to read: |
| 805 | 364.0361 Local government authority; nondiscriminatory |
| 806 | exercise.--A local government shall treat each telecommunications |
| 807 | company in a nondiscriminatory manner when exercising its |
| 808 | authority to grant franchises to a telecommunications company or |
| 809 | to otherwise establish conditions or compensation for the use of |
| 810 | rights-of-way or other public property by a telecommunications |
| 811 | company. A local government may not directly or indirectly |
| 812 | regulate the terms and conditions, including, but not limited to, |
| 813 | the operating systems, qualifications, services, service quality, |
| 814 | service territory, and prices, applicable to or in connection |
| 815 | with the provision of any voice-over-Internet protocol, |
| 816 | regardless of the platform, provider, or protocol, broadband or |
| 817 | information service. This section does not relieve a provider |
| 818 | from any obligations under s. 166.046 or s. 337.401. |
| 819 | Section 10. This act shall take effect upon becoming a law. |