Florida Senate - 2017                              CS for SB 596
       By the Committee on Communications, Energy, and Public
       Utilities; and Senators Hutson and Young
       579-02186-17                                           2017596c1
    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; authorizing an authority to
   10         require permit fees only under certain circumstances;
   11         requiring an authority to receive and process
   12         applications for permits, and to issue such permits,
   13         subject to specified requirements; providing that
   14         height limitations do not apply to the placement of
   15         small wireless facilities on or before a specified
   16         date under certain circumstances; prohibiting an
   17         authority from requiring approval or charges for
   18         routine maintenance, the replacement of certain
   19         wireless facilities, or the installation, placement,
   20         maintenance, or replacement of certain micro wireless
   21         facilities; requiring an authority to approve the
   22         collocation of small wireless facilities on authority
   23         utility poles, subject to certain requirements;
   24         providing requirements for rates, fees, and other
   25         terms related to authority utility poles; prohibiting
   26         an authority from adopting or enforcing any regulation
   27         on the placement or operation of certain
   28         communications facilities and from regulating any
   29         communications services or imposing or collecting any
   30         tax, fee, or charge not specifically authorized under
   31         state law; providing construction; providing an
   32         effective date.
   34  Be It Enacted by the Legislature of the State of Florida:
   36         Section 1. Subsection (7) is added to section 337.401,
   37  Florida Statutes, to read:
   38         337.401 Use of right-of-way for utilities subject to
   39  regulation; permit; fees.—
   40         (7)(a) This subsection may be cited as the “Advanced
   41  Wireless Infrastructure Deployment Act.”
   42         (b) As used in this subsection, the term:
   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. The term includes local
   51  government historic preservation zoning regulations consistent
   52  with the preservation of local zoning authority under 47 U.S.C
   53  s. 332(c)(7), the requirements for facility modifications under
   54  47 U.S.C. s. 1455(a), or the National Historic Preservation Act
   55  of 1966, as amended, and the regulations adopted to implement
   56  these laws.
   57         3. “Applicant” means a person who submits an application
   58  and is a wireless provider.
   59         4. “Application” means a request submitted by an applicant
   60  to an authority for a permit to collocate small wireless
   61  facilities.
   62         5. “Authority utility pole” means a utility pole owned by
   63  an authority in the right-of-way. The term does not include a
   64  utility pole owned by a municipal electric company.
   65         6. “Collocate” or “collocation” means to install, mount,
   66  maintain, modify, operate, or replace one or more wireless
   67  facilities on, under, within, or adjacent to a wireless support
   68  structure or utility pole.
   69         7. “FCC” means the Federal Communications Commission.
   70         8.“Micro wireless facility” means a small wireless
   71  facility having dimensions no larger than 24 inches in length,
   72  15 inches in width, and 12 inches in height and an exterior
   73  antenna, if any, no longer than 11 inches.
   74         9. “Small wireless facility” means a wireless facility that
   75  meets the following qualifications:
   76         a.Each antenna associated with the facility is located
   77  inside an enclosure of no more than 6 cubic feet in volume or,
   78  in the case of antennas that have exposed elements, each antenna
   79  and all of its exposed elements could fit within an enclosure of
   80  no more than 6 cubic feet in volume; and
   81         b.All other wireless equipment associated with the
   82  facility is cumulatively no more than 28 cubic feet in volume.
   83  The following types of associated ancillary equipment are not
   84  included in the calculation of equipment volume: electric
   85  meters, concealment elements, telecommunications demarcation
   86  boxes, ground-based enclosures, grounding equipment, power
   87  transfer switches, cutoff switches, vertical cable runs for the
   88  connection of power and other services, and utility poles or
   89  other support structures.
   90         10.“Utility pole” means a pole or similar structure that
   91  is used in whole or in part to provide communications services
   92  or for electric distribution, lighting, traffic control,
   93  signage, or a similar function.
   94         11. “Wireless facility” means equipment at a fixed location
   95  which enables wireless communications between user equipment and
   96  a communications network, including radio transceivers,
   97  antennas, wires, coaxial or fiber-optic cable or other cables,
   98  regular and backup power supplies, and comparable equipment,
   99  regardless of technological configuration, and equipment
  100  associated with wireless communications. The term includes small
  101  wireless facilities. The term does not include:
  102         a. The structure or improvements on, under, within, or
  103  adjacent to the structure on which the equipment is collocated;
  104         b. Wireline backhaul facilities; or
  105         c. Coaxial or fiber-optic cable that is between wireless
  106  structures or utility poles or that is otherwise not immediately
  107  adjacent to or directly associated with a particular antenna.
  108         12. “Wireless infrastructure provider” means a person who
  109  is certificated to provide telecommunications service in the
  110  state and who builds or installs wireless communication
  111  transmission equipment, wireless facilities, or wireless support
  112  structures, but is not a wireless services provider.
  113         13. “Wireless provider” means a wireless infrastructure
  114  provider or a wireless services provider.
  115         14. “Wireless services” means any services provided using
  116  licensed or unlicensed spectrum, whether at a fixed location or
  117  mobile, using wireless facilities.
  118         15. “Wireless services provider” means a person who
  119  provides wireless services.
  120         16. “Wireless support structure” means a freestanding
  121  structure, such as a monopole, a guyed or self-supporting tower,
  122  a billboard, or another existing or proposed structure designed
  123  to support or capable of supporting wireless facilities. The
  124  term does not include a utility pole.
  125         (c) Except as provided in this subsection, an authority may
  126  not prohibit, regulate, or charge for the collocation of small
  127  wireless facilities in the public rights-of-way.
  128         (d) An authority may require permit fees only in accordance
  129  with subsection (3). An authority shall accept applications for
  130  permits and shall process and issue permits subject to the
  131  following requirements:
  132         1. An authority may not directly or indirectly require an
  133  applicant to perform services unrelated to the collocation for
  134  which approval is sought, such as in-kind contributions to the
  135  authority, including reserving fiber, conduit, or pole space for
  136  the authority.
  137         2. An applicant may not be required to provide more
  138  information to obtain a permit than is required of electric
  139  service providers and other communications service providers
  140  that are not wireless services providers.
  141         3. An authority may not require the placement of small
  142  wireless facilities on any specific utility pole or category of
  143  poles or require multiple antenna systems on a single utility
  144  pole.
  145         4. An authority may not limit the placement of small
  146  wireless facilities by minimum separation distances or a maximum
  147  height limitation; however, an authority may limit the height of
  148  a small wireless facility to no more than 10 feet above the
  149  tallest existing utility pole, measured from grade in place
  150  within 500 feet of the proposed location of the small wireless
  151  facility. If there is no utility pole within 500 feet, the
  152  authority may limit the height of the small wireless facility to
  153  no more than 60 feet. The height limitations do not apply to the
  154  placement of any small wireless facility on a utility pole or
  155  wireless support structure constructed on or before June 30,
  156  2017, if the small wireless facility does not extend more than
  157  10 feet above the structure.
  158         5. Within 10 days after receiving an application, an
  159  authority must determine and notify the applicant by electronic
  160  mail as to whether the application is complete. If an
  161  application is deemed incomplete, the authority must
  162  specifically identify the missing information. An application is
  163  deemed complete if the authority fails to provide notification
  164  to the applicant within 10 days or when all documents,
  165  information, and fees specifically enumerated in the authority’s
  166  permit application form are submitted by the applicant to the
  167  authority.
  168         6. An application must be processed on a nondiscriminatory
  169  basis. A complete application is deemed approved if an authority
  170  fails to approve or deny the application within 60 days after
  171  receipt of the application.
  172         7.An authority must notify the applicant of approval or
  173  denial by electronic mail. An authority shall approve a complete
  174  application unless it does not meet the authority’s applicable
  175  codes. If the application is denied, the authority must specify
  176  in writing the basis for denial, including the specific code
  177  provisions on which the denial was based, and send the
  178  documentation to the applicant by electronic mail on the day the
  179  authority denies the application. The applicant may cure the
  180  deficiencies identified by the authority and resubmit the
  181  application within 30 days after notice of the denial is sent to
  182  the applicant. The authority shall approve or deny the revised
  183  application within 30 days after receipt or the application is
  184  deemed approved. Any subsequent review shall be limited to the
  185  deficiencies cited in the denial.
  186         8. An applicant seeking to collocate small wireless
  187  facilities within the jurisdiction of a single authority may, at
  188  the applicant’s discretion, file a consolidated application and
  189  receive a single permit for the collocation of multiple small
  190  wireless facilities.
  191         (e)An authority may not require approval or require fees
  192  or other charges for:
  193         1. Routine maintenance;
  194         2. Replacement of existing wireless facilities with
  195  wireless facilities that are substantially similar or of the
  196  same or smaller size; or
  197         3. Installation, placement, maintenance, or replacement of
  198  micro wireless facilities that are suspended on cables strung
  199  between existing utility poles in compliance with applicable
  200  codes by a communications service provider authorized to occupy
  201  the rights-of-way and who is remitting taxes under chapter 202.
  202         (f) An authority shall approve the collocation of small
  203  wireless facilities on authority utility poles, subject to the
  204  following requirements:
  205         1. An authority may not enter into an exclusive arrangement
  206  with any person for the right to attach equipment to authority
  207  utility poles.
  208         2. The rates and fees for collocations on authority utility
  209  poles must be nondiscriminatory, regardless of the services
  210  provided by the collocating person.
  211         3. The rate to collocate equipment on authority utility
  212  poles may not exceed the lesser of the annual recurring rate
  213  that would be permitted under rules adopted by the FCC under 47
  214  U.S.C. s. 224(d) if the collocation rate were regulated by the
  215  FCC or $15 per year per authority utility pole.
  216         4.If an authority has an existing pole attachment rate,
  217  fee, or other term that does not comply with this subsection,
  218  the authority shall, no later than January 1, 2018, revise such
  219  rate, fee, or term to be in compliance with this subsection.
  220         5. A person owning or controlling an authority utility pole
  221  shall offer rates, fees, and other terms that comply with this
  222  subsection. By the later of January 1, 2018, or 3 months after
  223  receiving a request to collocate its first small wireless
  224  facility on a utility pole owned or controlled by an authority,
  225  the person owning or controlling the authority utility pole
  226  shall make available, through ordinance or otherwise, rates,
  227  fees, and terms for the collocation of small wireless facilities
  228  on the authority utility pole which comply with this subsection.
  229         a. The rates, fees, and terms must be nondiscriminatory,
  230  competitively neutral, and commercially reasonable and must
  231  comply with this subsection.
  232         b. For an authority utility pole that supports an aerial
  233  facility used to provide communications services or electric
  234  service, the parties shall comply with the process for make
  235  ready work under 47 U.S.C. s. 224 and implementing regulations.
  236  The good faith estimate of the person owning or controlling the
  237  pole for any make-ready work necessary to enable the pole to
  238  support the requested collocation must include pole replacement
  239  if necessary.
  240         c. For an authority utility pole that does not support an
  241  aerial facility used to provide communications services or
  242  electric service, the authority shall provide a good faith
  243  estimate for any make-ready work necessary to enable the pole to
  244  support the requested collocation, including necessary pole
  245  replacement, within 60 days after receipt of a complete
  246  application. Make-ready work, including any pole replacement,
  247  must be completed within 60 days after written acceptance of the
  248  good faith estimate by the applicant.
  249         d.An authority may not require more make-ready work than
  250  is required to meet applicable codes or industry standards. Fees
  251  for make-ready work may not include costs related to preexisting
  252  damage or prior noncompliance. Fees for make-ready work,
  253  including any pole replacement, may not exceed actual costs or
  254  the amount charged to communications service providers other
  255  than wireless services providers for similar work and may not
  256  include any consultant fee or expense.
  257         (g) Except as provided in this chapter or specifically
  258  required by state law, an authority may not adopt or enforce any
  259  regulation on the placement or operation of communications
  260  facilities in the rights-of-way by a provider authorized by
  261  state law to operate in the rights-of-way and may not regulate
  262  any communications services or impose or collect any tax, fee,
  263  or charge not specifically authorized under state law.
  264         (h) This subsection does not authorize a person to
  265  collocate small wireless facilities on a privately owned utility
  266  pole, a utility pole owned by an electric cooperative, a
  267  privately owned wireless support structure, or other private
  268  property without the consent of the property owner.
  269         (i) This subsection may not be construed to limit local
  270  governments’ authority to enforce historic preservation zoning
  271  regulations consistent with the preservation of local zoning
  272  authority under 47 U.S.C s. 332(c)(7), the requirements for
  273  facility modifications under 47 U.S.C. s. 1455(a), or the
  274  National Historic Preservation Act of 1966, as amended, and the
  275  regulations adopted to implement these laws.
  276         Section 2. This act shall take effect July 1, 2017.