Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. CS for SB 596
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/27/2017           .                                

       The Committee on Governmental Oversight and Accountability
       (Hutson) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (a) of subsection (1) of section
    6  337.401, Florida Statutes, is amended, and subsection (7) is
    7  added to that section, to read:
    8         337.401 Use of right-of-way for utilities subject to
    9  regulation; permit; fees.—
   10         (1)(a) The department and local governmental entities,
   11  referred to in this section and in ss. 337.402, 337.403, and
   12  337.404 as the “authority,” that have jurisdiction and control
   13  of public roads or publicly owned rail corridors are authorized
   14  to prescribe and enforce reasonable rules or regulations with
   15  reference to the placing and maintaining across, on, or within
   16  the right-of-way limits of any road or publicly owned rail
   17  corridors under their respective jurisdictions any electric
   18  transmission, voice telephone, telegraph, data, or other
   19  communications services lines or wireless facilities; pole
   20  lines; poles; railways; ditches; sewers; water, heat, or gas
   21  mains; pipelines; fences; gasoline tanks and pumps; or other
   22  structures referred to in this section and in ss. 337.402,
   23  337.403, and 337.404 as the “utility.” The department may enter
   24  into a permit-delegation agreement with a governmental entity if
   25  issuance of a permit is based on requirements that the
   26  department finds will ensure the safety and integrity of
   27  facilities of the Department of Transportation; however, the
   28  permit-delegation agreement does not apply to facilities of
   29  electric utilities as defined in s. 366.02(2).
   30         (7)(a) This subsection may be cited as the “Advanced
   31  Wireless Infrastructure Deployment Act.”
   32         (b) As used in this subsection, the term:
   33         1. “Antenna” means communications equipment that transmits
   34  or receives electromagnetic radio frequency signals used in
   35  providing wireless services.
   36         2. “Applicable codes” means uniform building, fire,
   37  electrical, plumbing, or mechanical codes adopted by a
   38  recognized national code organization, or local amendments to
   39  those codes, enacted solely to address threats of destruction of
   40  property or injury to persons. The term includes local
   41  government historic preservation zoning regulations consistent
   42  with the preservation of local zoning authority under 47 U.S.C
   43  s. 332(c)(7), the requirements for facility modifications under
   44  47 U.S.C. s. 1455(a), or the National Historic Preservation Act
   45  of 1966, as amended; and the regulations adopted to implement
   46  these laws.
   47         3. “Applicant” means a person who submits an application
   48  and is a wireless provider.
   49         4. “Application” means a request submitted by an applicant
   50  to an authority for a permit to collocate small wireless
   51  facilities.
   52         5. “Authority” means a county or municipality having
   53  jurisdiction and control of the rights-of-way of any public
   54  road. The term does not include the Department of
   55  Transportation. The Department of Transportation rights-of-way
   56  are excluded from this subsection.
   57         6. “Authority utility pole” means a utility pole owned by
   58  an authority in the right-of-way. The term does not include a
   59  utility pole owned by a municipal electric utility or any
   60  utility pole used to support municipally owned or operated
   61  electric distribution facilities.
   62         7. “Collocate” or “collocation” means to install, mount,
   63  maintain, modify, operate, or replace one or more wireless
   64  facilities on, under, within, or adjacent to a wireless support
   65  structure or utility pole.
   66         8. “FCC” means the Federal Communications Commission.
   67         9.“Micro wireless facility” means a small wireless
   68  facility having dimensions no larger than 24 inches in length,
   69  15 inches in width, and 12 inches in height and an exterior
   70  antenna, if any, no longer than 11 inches.
   71         10. “Small wireless facility” means a wireless facility
   72  that meets the following qualifications:
   73         a.Each antenna associated with the facility is located
   74  inside an enclosure of no more than 6 cubic feet in volume or,
   75  in the case of antennas that have exposed elements, each antenna
   76  and all of its exposed elements could fit within an enclosure of
   77  no more than 6 cubic feet in volume; and
   78         b.All other wireless equipment associated with the
   79  facility is cumulatively no more than 28 cubic feet in volume.
   80  The following types of associated ancillary equipment are not
   81  included in the calculation of equipment volume: electric
   82  meters, concealment elements, telecommunications demarcation
   83  boxes, ground-based enclosures, grounding equipment, power
   84  transfer switches, cutoff switches, vertical cable runs for the
   85  connection of power and other services, and utility poles or
   86  other support structures.
   87         11.“Utility pole” means a pole or similar structure that
   88  is used in whole or in part to provide communications services
   89  or for electric distribution, lighting, traffic control,
   90  signage, or a similar function.
   91         12. “Wireless facility” means equipment at a fixed location
   92  which enables wireless communications between user equipment and
   93  a communications network, including radio transceivers,
   94  antennas, wires, coaxial or fiber-optic cable or other cables,
   95  regular and backup power supplies, and comparable equipment,
   96  regardless of technological configuration, and equipment
   97  associated with wireless communications. The term includes small
   98  wireless facilities. The term does not include:
   99         a. The structure or improvements on, under, within, or
  100  adjacent to the structure on which the equipment is collocated;
  101         b. Wireline backhaul facilities; or
  102         c. Coaxial or fiber-optic cable that is between wireless
  103  structures or utility poles or that is otherwise not immediately
  104  adjacent to or directly associated with a particular antenna.
  105         13. “Wireless infrastructure provider” means a person who
  106  is certificated to provide telecommunications service in the
  107  state and who builds or installs wireless communication
  108  transmission equipment, wireless facilities, or wireless support
  109  structures, but is not a wireless services provider.
  110         14. “Wireless provider” means a wireless infrastructure
  111  provider or a wireless services provider.
  112         15. “Wireless services” means any services provided using
  113  licensed or unlicensed spectrum, whether at a fixed location or
  114  mobile, using wireless facilities.
  115         16. “Wireless services provider” means a person who
  116  provides wireless services.
  117         17. “Wireless support structure” means a freestanding
  118  structure, such as a monopole, a guyed or self-supporting tower,
  119  a billboard, or another existing or proposed structure designed
  120  to support or capable of supporting wireless facilities. The
  121  term does not include a utility pole.
  122         (c) Except as provided in this subsection, an authority may
  123  not prohibit, regulate, or charge for the collocation of small
  124  wireless facilities in the public rights-of-way.
  125         (d) An authority may require permit fees only in accordance
  126  with subsection (3). An authority shall accept applications for
  127  permits and shall process and issue permits subject to the
  128  following requirements:
  129         1. An authority may not directly or indirectly require an
  130  applicant to perform services unrelated to the collocation for
  131  which approval is sought, such as in-kind contributions to the
  132  authority, including reserving fiber, conduit, or pole space for
  133  the authority.
  134         2. An applicant may not be required to provide more
  135  information to obtain a permit than is required of electric
  136  service providers and other communications service providers
  137  that are not wireless services providers.
  138         3. An authority may not require the placement of small
  139  wireless facilities on any specific utility pole or category of
  140  poles or require multiple antenna systems on a single utility
  141  pole.
  142         4. An authority may not limit the placement of small
  143  wireless facilities by minimum separation distances.
  144         5. An authority may limit the height of a small wireless
  145  facility to be no more than 10 feet above the tallest existing
  146  utility pole within 500 feet, measured from grade in place, of
  147  the proposed location of the small wireless facility. If there
  148  is no utility pole within 500 feet, the authority may limit the
  149  height of the small wireless facility to be no more than 60
  150  feet. The height limitations do not apply to the placement of
  151  any small wireless facility on a utility pole or wireless
  152  support structure constructed on or before June 30, 2017, if the
  153  small wireless facility does not extend more than 10 feet above
  154  the structure.
  155         6. A wireless infrastructure provider may apply to an
  156  authority to place utility poles or wireless support structures
  157  in the public rights-of-way to support the collocation of small
  158  wireless facilities. The application must include an attestation
  159  that small wireless facilities will be collocated on the utility
  160  pole or structure and small wireless facilities will be used by
  161  a wireless services provider to provide service within 9 months
  162  after the date the application is granted. An authority shall
  163  accept and process the application in accordance with this
  164  paragraph and any applicable local codes governing the placement
  165  of utility poles in the public rights-of-way.
  166         7. Within 10 days after receiving an application, an
  167  authority must determine and notify the applicant by electronic
  168  mail as to whether the application is complete. If an
  169  application is deemed incomplete, the authority must
  170  specifically identify the missing information. An application is
  171  deemed complete if the authority fails to provide notification
  172  to the applicant within 10 days or when all documents,
  173  information, and fees specifically enumerated in the authority’s
  174  permit application form are submitted by the applicant to the
  175  authority.
  176         8. An application must be processed on a nondiscriminatory
  177  basis. A complete application is deemed approved if an authority
  178  fails to approve or deny the application within 60 days after
  179  receipt of the application.
  180         9.An authority must notify the applicant of approval or
  181  denial by electronic mail. An authority shall approve a complete
  182  application unless it does not meet the authority’s applicable
  183  codes. If the application is denied, the authority must specify
  184  in writing the basis for denial, including the specific code
  185  provisions on which the denial was based, and send the
  186  documentation to the applicant by electronic mail on the day the
  187  authority denies the application. The applicant may cure the
  188  deficiencies identified by the authority and resubmit the
  189  application within 30 days after notice of the denial is sent to
  190  the applicant. The authority shall approve or deny the revised
  191  application within 30 days after receipt or the application is
  192  deemed approved. Any subsequent review shall be limited to the
  193  deficiencies cited in the denial.
  194         10. An applicant seeking to collocate small wireless
  195  facilities within the jurisdiction of a single authority may, at
  196  the applicant’s discretion, file a consolidated application and
  197  receive a single permit for the collocation of multiple small
  198  wireless facilities.
  199         (e)An authority may not require approval, fees, or other
  200  charges for:
  201         1. Routine maintenance;
  202         2. Replacement of existing wireless facilities with
  203  wireless facilities that are substantially similar or of the
  204  same or smaller size; or
  205         3. Installation, placement, maintenance, or replacement of
  206  micro wireless facilities that are suspended on cables strung
  207  between existing utility poles in compliance with applicable
  208  codes by a communications service provider that is authorized to
  209  occupy the rights-of-way and that is remitting taxes under
  210  chapter 202.
  211         (f) An authority shall approve the collocation of small
  212  wireless facilities on authority utility poles, subject to the
  213  following requirements:
  214         1. An authority may not enter into an exclusive arrangement
  215  with any person for the right to attach equipment to authority
  216  utility poles.
  217         2. The rates and fees for collocations on authority utility
  218  poles must be nondiscriminatory, regardless of the services
  219  provided by the collocating person.
  220         3. The rate to collocate equipment on authority utility
  221  poles may not exceed the lesser of the annual recurring rate
  222  that would be permitted under rules adopted by the FCC under 47
  223  U.S.C. s. 224(d) if the collocation rate were regulated by the
  224  FCC or $15 per year per authority utility pole.
  225         4.If an authority has an existing pole attachment rate,
  226  fee, or other term that does not comply with this subsection,
  227  the authority shall, no later than January 1, 2018, revise such
  228  rate, fee, or term to be in compliance with this subsection.
  229         5. A person owning or controlling an authority utility pole
  230  shall offer rates, fees, and other terms that comply with this
  231  subsection. By the later of January 1, 2018, or 3 months after
  232  receiving a request to collocate its first small wireless
  233  facility on a utility pole owned or controlled by an authority,
  234  the person owning or controlling the authority utility pole
  235  shall make available, through ordinance or otherwise, rates,
  236  fees, and terms for the collocation of small wireless facilities
  237  on the authority utility pole which comply with this subsection.
  238         a. The rates, fees, and terms must be nondiscriminatory,
  239  competitively neutral, and commercially reasonable and must
  240  comply with this subsection.
  241         b. For an authority utility pole that supports an aerial
  242  facility used to provide communications services or electric
  243  service, the parties shall comply with the process for make
  244  ready work under 47 U.S.C. s. 224 and implementing regulations.
  245  The good faith estimate of the person owning or controlling the
  246  pole for any make-ready work necessary to enable the pole to
  247  support the requested collocation must include pole replacement
  248  if necessary.
  249         c. For an authority utility pole that does not support an
  250  aerial facility used to provide communications services or
  251  electric service, the authority shall provide a good faith
  252  estimate for any make-ready work necessary to enable the pole to
  253  support the requested collocation, including necessary pole
  254  replacement, within 60 days after receipt of a complete
  255  application. Make-ready work, including any pole replacement,
  256  must be completed within 60 days after written acceptance of the
  257  good faith estimate by the applicant.
  258         d.An authority may not require more make-ready work than
  259  is required to meet applicable codes or industry standards. Fees
  260  for make-ready work may not include costs related to preexisting
  261  damage or prior noncompliance. Fees for make-ready work,
  262  including any pole replacement, may not exceed actual costs or
  263  the amount charged to communications service providers other
  264  than wireless services providers for similar work and may not
  265  include any consultant fee or expense.
  266         (g) Except as provided in this chapter or specifically
  267  required by state law, an authority may not adopt or enforce any
  268  regulation on the placement or operation of communications
  269  facilities in the rights-of-way by a provider authorized by
  270  state law to operate in the rights-of-way and may not regulate
  271  any communications services or impose or collect any tax, fee,
  272  or charge not specifically authorized under state law.
  273         (h) This subsection does not authorize a person to
  274  collocate small wireless facilities on a privately owned utility
  275  pole, a utility pole owned by an electric cooperative or by a
  276  municipal electric utility, a privately owned wireless support
  277  structure, or other private property without the consent of the
  278  property owner.
  279         (i) This subsection may not be construed to limit a local
  280  government’s authority to enforce historic preservation zoning
  281  regulations consistent with the preservation of local zoning
  282  authority under 47 U.S.C s. 332(c)(7), the requirements for
  283  facility modifications under 47 U.S.C. s. 1455(a), or the
  284  National Historic Preservation Act of 1966, as amended; and the
  285  regulations adopted to implement these laws.
  286         Section 2. This act shall take effect July 1, 2017.
  288  ================= T I T L E  A M E N D M E N T ================
  289  And the title is amended as follows:
  290         Delete everything before the enacting clause
  291  and insert:
  292                        A bill to be entitled                      
  293         An act relating to utilities; amending s. 337.401,
  294         F.S.; authorizing the Department of Transportation and
  295         certain local governmental entities to prescribe and
  296         enforce reasonable rules or regulations with reference
  297         to the placing and maintaining across, on, or within
  298         the right-of-way limits of any road or publicly owned
  299         rail corridors under their respective jurisdictions
  300         any voice or data communications services lines or
  301         wireless facilities; providing a short title; defining
  302         terms; prohibiting a county or municipality having
  303         jurisdiction and control of the rights-of-way of any
  304         public road, referred to as the “authority,” from
  305         prohibiting, regulating, or charging for the
  306         collocation of small wireless facilities in public
  307         rights-of-way under certain circumstances; authorizing
  308         an authority to require permit fees only under certain
  309         circumstances; requiring an authority to receive and
  310         process applications for permits and to issue such
  311         permits, subject to specified requirements; providing
  312         that height limitations do not apply to the placement
  313         of small wireless facilities on or before a specified
  314         date under certain circumstances; prohibiting an
  315         authority from requiring approval, fees, or other
  316         charges for routine maintenance, the replacement of
  317         certain wireless facilities, or the installation,
  318         placement, maintenance, or replacement of certain
  319         micro wireless facilities; requiring an authority to
  320         approve the collocation of small wireless facilities
  321         on authority utility poles, subject to certain
  322         requirements; providing requirements for rates, fees,
  323         and other terms related to authority utility poles;
  324         prohibiting an authority from adopting or enforcing
  325         any regulation on the placement or operation of
  326         certain communications facilities, from regulating any
  327         communications services, or from imposing or
  328         collecting any tax, fee, or charge not specifically
  329         authorized under state law; providing construction;
  330         providing an effective date.