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