Florida Senate - 2017                       CS for CS for SB 596
       By the Committees on Governmental Oversight and Accountability;
       and Communications, Energy, and Public Utilities; and Senators
       Hutson, Young, and Broxson
       585-02958-17                                           2017596c2
    1                        A bill to be entitled                      
    2         An act relating to utilities; amending s. 337.401,
    3         F.S.; authorizing the Department of Transportation and
    4         certain local governmental entities to prescribe and
    5         enforce reasonable rules or regulations with reference
    6         to the placing and maintaining across, on, or within
    7         the right-of-way limits of any road or publicly owned
    8         rail corridors under their respective jurisdictions
    9         any voice or data communications services lines or
   10         wireless facilities; providing a short title; defining
   11         terms; prohibiting a county or municipality having
   12         jurisdiction and control of the rights-of-way of any
   13         public road, referred to as the “authority,” from
   14         prohibiting, regulating, or charging for the
   15         collocation of small wireless facilities in public
   16         rights-of-way under certain circumstances; authorizing
   17         an authority to require permit fees only under certain
   18         circumstances; requiring an authority to receive and
   19         process applications for permits and to issue such
   20         permits, subject to specified requirements; providing
   21         that height limitations do not apply to the placement
   22         of small wireless facilities on or before a specified
   23         date under certain circumstances; prohibiting an
   24         authority from requiring approval, fees, or other
   25         charges for routine maintenance, the replacement of
   26         certain wireless facilities, or the installation,
   27         placement, maintenance, or replacement of certain
   28         micro wireless facilities; requiring an authority to
   29         approve the collocation of small wireless facilities
   30         on authority utility poles, subject to certain
   31         requirements; providing requirements for rates, fees,
   32         and other terms related to authority utility poles;
   33         prohibiting an authority from adopting or enforcing
   34         any regulation on the placement or operation of
   35         certain communications facilities, from regulating any
   36         communications services, or from imposing or
   37         collecting any tax, fee, or charge not specifically
   38         authorized under state law; providing construction;
   39         providing an effective date.
   41  Be It Enacted by the Legislature of the State of Florida:
   43         Section 1. Paragraph (a) of subsection (1) of section
   44  337.401, Florida Statutes, is amended, and subsection (7) is
   45  added to that section, to read:
   46         337.401 Use of right-of-way for utilities subject to
   47  regulation; permit; fees.—
   48         (1)(a) The department and local governmental entities,
   49  referred to in this section and in ss. 337.402, 337.403, and
   50  337.404 as the “authority,” that have jurisdiction and control
   51  of public roads or publicly owned rail corridors are authorized
   52  to prescribe and enforce reasonable rules or regulations with
   53  reference to the placing and maintaining across, on, or within
   54  the right-of-way limits of any road or publicly owned rail
   55  corridors under their respective jurisdictions any electric
   56  transmission, voice telephone, telegraph, data, or other
   57  communications services lines or wireless facilities; pole
   58  lines; poles; railways; ditches; sewers; water, heat, or gas
   59  mains; pipelines; fences; gasoline tanks and pumps; or other
   60  structures referred to in this section and in ss. 337.402,
   61  337.403, and 337.404 as the “utility.” The department may enter
   62  into a permit-delegation agreement with a governmental entity if
   63  issuance of a permit is based on requirements that the
   64  department finds will ensure the safety and integrity of
   65  facilities of the Department of Transportation; however, the
   66  permit-delegation agreement does not apply to facilities of
   67  electric utilities as defined in s. 366.02(2).
   68         (7)(a) This subsection may be cited as the “Advanced
   69  Wireless Infrastructure Deployment Act.”
   70         (b) As used in this subsection, the term:
   71         1. “Antenna” means communications equipment that transmits
   72  or receives electromagnetic radio frequency signals used in
   73  providing wireless services.
   74         2. “Applicable codes” means uniform building, fire,
   75  electrical, plumbing, or mechanical codes adopted by a
   76  recognized national code organization, or local amendments to
   77  those codes, enacted solely to address threats of destruction of
   78  property or injury to persons. The term includes local
   79  government historic preservation zoning regulations consistent
   80  with the preservation of local zoning authority under 47 U.S.C
   81  s. 332(c)(7), the requirements for facility modifications under
   82  47 U.S.C. s. 1455(a), or the National Historic Preservation Act
   83  of 1966, as amended; and the regulations adopted to implement
   84  these laws.
   85         3. “Applicant” means a person who submits an application
   86  and is a wireless provider.
   87         4. “Application” means a request submitted by an applicant
   88  to an authority for a permit to collocate small wireless
   89  facilities.
   90         5. “Authority” means a county or municipality having
   91  jurisdiction and control of the rights-of-way of any public
   92  road. The term does not include the Department of
   93  Transportation. The Department of Transportation rights-of-way
   94  are excluded from this subsection.
   95         6. “Authority utility pole” means a utility pole owned by
   96  an authority in the right-of-way. The term does not include a
   97  utility pole owned by a municipal electric utility, any utility
   98  pole used to support municipally owned or operated electric
   99  distribution facilities, or a utility pole located in the right
  100  of-way within a retirement community that:
  101         a. Is deed-restricted as housing for older persons as
  102  defined in s. 760.29(4)(b);
  103         b. Has more than 5,000 residents; and
  104         c. Has underground utilities for electric transmission or
  105  distribution.
  106         7. “Collocate” or “collocation” means to install, mount,
  107  maintain, modify, operate, or replace one or more wireless
  108  facilities on, under, within, or adjacent to a wireless support
  109  structure or utility pole.
  110         8. “FCC” means the Federal Communications Commission.
  111         9.“Micro wireless facility” means a small wireless
  112  facility having dimensions no larger than 24 inches in length,
  113  15 inches in width, and 12 inches in height and an exterior
  114  antenna, if any, no longer than 11 inches.
  115         10. “Small wireless facility” means a wireless facility
  116  that meets the following qualifications:
  117         a.Each antenna associated with the facility is located
  118  inside an enclosure of no more than 6 cubic feet in volume or,
  119  in the case of antennas that have exposed elements, each antenna
  120  and all of its exposed elements could fit within an enclosure of
  121  no more than 6 cubic feet in volume; and
  122         b.All other wireless equipment associated with the
  123  facility is cumulatively no more than 28 cubic feet in volume.
  124  The following types of associated ancillary equipment are not
  125  included in the calculation of equipment volume: electric
  126  meters, concealment elements, telecommunications demarcation
  127  boxes, ground-based enclosures, grounding equipment, power
  128  transfer switches, cutoff switches, vertical cable runs for the
  129  connection of power and other services, and utility poles or
  130  other support structures.
  131         11.“Utility pole” means a pole or similar structure that
  132  is used in whole or in part to provide communications services
  133  or for electric distribution, lighting, traffic control,
  134  signage, or a similar function.
  135         12. “Wireless facility” means equipment at a fixed location
  136  which enables wireless communications between user equipment and
  137  a communications network, including radio transceivers,
  138  antennas, wires, coaxial or fiber-optic cable or other cables,
  139  regular and backup power supplies, and comparable equipment,
  140  regardless of technological configuration, and equipment
  141  associated with wireless communications. The term includes small
  142  wireless facilities. The term does not include:
  143         a. The structure or improvements on, under, within, or
  144  adjacent to the structure on which the equipment is collocated;
  145         b. Wireline backhaul facilities; or
  146         c. Coaxial or fiber-optic cable that is between wireless
  147  structures or utility poles or that is otherwise not immediately
  148  adjacent to or directly associated with a particular antenna.
  149         13. “Wireless infrastructure provider” means a person who
  150  is certificated to provide telecommunications service in the
  151  state and who builds or installs wireless communication
  152  transmission equipment, wireless facilities, or wireless support
  153  structures, but is not a wireless services provider.
  154         14. “Wireless provider” means a wireless infrastructure
  155  provider or a wireless services provider.
  156         15. “Wireless services” means any services provided using
  157  licensed or unlicensed spectrum, whether at a fixed location or
  158  mobile, using wireless facilities.
  159         16. “Wireless services provider” means a person who
  160  provides wireless services.
  161         17. “Wireless support structure” means a freestanding
  162  structure, such as a monopole, a guyed or self-supporting tower,
  163  a billboard, or another existing or proposed structure designed
  164  to support or capable of supporting wireless facilities. The
  165  term does not include a utility pole.
  166         (c) Except as provided in this subsection, an authority may
  167  not prohibit, regulate, or charge for the collocation of small
  168  wireless facilities in the public rights-of-way.
  169         (d) An authority may require permit fees only in accordance
  170  with subsection (3). An authority shall accept applications for
  171  permits and shall process and issue permits subject to the
  172  following requirements:
  173         1. An authority may not directly or indirectly require an
  174  applicant to perform services unrelated to the collocation for
  175  which approval is sought, such as in-kind contributions to the
  176  authority, including reserving fiber, conduit, or pole space for
  177  the authority.
  178         2. An applicant may not be required to provide more
  179  information to obtain a permit than is required of electric
  180  service providers and other communications service providers
  181  that are not wireless services providers.
  182         3. An authority may not require the placement of small
  183  wireless facilities on any specific utility pole or category of
  184  poles or require multiple antenna systems on a single utility
  185  pole.
  186         4. An authority may not limit the placement of small
  187  wireless facilities by minimum separation distances.
  188         5. An authority may limit the height of a small wireless
  189  facility to be no more than 10 feet above the tallest existing
  190  utility pole within 500 feet, measured from grade in place, of
  191  the proposed location of the small wireless facility. If there
  192  is no utility pole within 500 feet, the authority may limit the
  193  height of the small wireless facility to be no more than 60
  194  feet. The height limitations do not apply to the placement of
  195  any small wireless facility on a utility pole or wireless
  196  support structure constructed on or before June 30, 2017, if the
  197  small wireless facility does not extend more than 10 feet above
  198  the structure.
  199         6. A wireless infrastructure provider may apply to an
  200  authority to place utility poles or wireless support structures
  201  in the public rights-of-way to support the collocation of small
  202  wireless facilities. The application must include an attestation
  203  that small wireless facilities will be collocated on the utility
  204  pole or structure and small wireless facilities will be used by
  205  a wireless services provider to provide service within 9 months
  206  after the date the application is granted. An authority shall
  207  accept and process the application in accordance with this
  208  paragraph and any applicable local codes governing the placement
  209  of utility poles in the public rights-of-way.
  210         7. Within 10 days after receiving an application, an
  211  authority must determine and notify the applicant by electronic
  212  mail as to whether the application is complete. If an
  213  application is deemed incomplete, the authority must
  214  specifically identify the missing information. An application is
  215  deemed complete if the authority fails to provide notification
  216  to the applicant within 10 days or when all documents,
  217  information, and fees specifically enumerated in the authority’s
  218  permit application form are submitted by the applicant to the
  219  authority.
  220         8. An application must be processed on a nondiscriminatory
  221  basis. A complete application is deemed approved if an authority
  222  fails to approve or deny the application within 60 days after
  223  receipt of the application.
  224         9.An authority must notify the applicant of approval or
  225  denial by electronic mail. An authority shall approve a complete
  226  application unless it does not meet the authority’s applicable
  227  codes. If the application is denied, the authority must specify
  228  in writing the basis for denial, including the specific code
  229  provisions on which the denial was based, and send the
  230  documentation to the applicant by electronic mail on the day the
  231  authority denies the application. The applicant may cure the
  232  deficiencies identified by the authority and resubmit the
  233  application within 30 days after notice of the denial is sent to
  234  the applicant. The authority shall approve or deny the revised
  235  application within 30 days after receipt or the application is
  236  deemed approved. Any subsequent review shall be limited to the
  237  deficiencies cited in the denial.
  238         10. An applicant seeking to collocate small wireless
  239  facilities within the jurisdiction of a single authority may, at
  240  the applicant’s discretion, file a consolidated application and
  241  receive a single permit for the collocation of multiple small
  242  wireless facilities.
  243         (e)An authority may not require approval, fees, or other
  244  charges for:
  245         1. Routine maintenance;
  246         2. Replacement of existing wireless facilities with
  247  wireless facilities that are substantially similar or of the
  248  same or smaller size; or
  249         3. Installation, placement, maintenance, or replacement of
  250  micro wireless facilities that are suspended on cables strung
  251  between existing utility poles in compliance with applicable
  252  codes by a communications service provider that is authorized to
  253  occupy the rights-of-way and that is remitting taxes under
  254  chapter 202.
  255         (f) An authority shall approve the collocation of small
  256  wireless facilities on authority utility poles, subject to the
  257  following requirements:
  258         1. An authority may not enter into an exclusive arrangement
  259  with any person for the right to attach equipment to authority
  260  utility poles.
  261         2. The rates and fees for collocations on authority utility
  262  poles must be nondiscriminatory, regardless of the services
  263  provided by the collocating person.
  264         3. The rate to collocate equipment on authority utility
  265  poles may not exceed the lesser of the annual recurring rate
  266  that would be permitted under rules adopted by the FCC under 47
  267  U.S.C. s. 224(d) if the collocation rate were regulated by the
  268  FCC or $15 per year per authority utility pole.
  269         4.If an authority has an existing pole attachment rate,
  270  fee, or other term that does not comply with this subsection,
  271  the authority shall, no later than January 1, 2018, revise such
  272  rate, fee, or term to be in compliance with this subsection.
  273         5. A person owning or controlling an authority utility pole
  274  shall offer rates, fees, and other terms that comply with this
  275  subsection. By the later of January 1, 2018, or 3 months after
  276  receiving a request to collocate its first small wireless
  277  facility on a utility pole owned or controlled by an authority,
  278  the person owning or controlling the authority utility pole
  279  shall make available, through ordinance or otherwise, rates,
  280  fees, and terms for the collocation of small wireless facilities
  281  on the authority utility pole which comply with this subsection.
  282         a. The rates, fees, and terms must be nondiscriminatory,
  283  competitively neutral, and commercially reasonable and must
  284  comply with this subsection.
  285         b. For an authority utility pole that supports an aerial
  286  facility used to provide communications services or electric
  287  service, the parties shall comply with the process for make
  288  ready work under 47 U.S.C. s. 224 and implementing regulations.
  289  The good faith estimate of the person owning or controlling the
  290  pole for any make-ready work necessary to enable the pole to
  291  support the requested collocation must include pole replacement
  292  if necessary.
  293         c. For an authority utility pole that does not support an
  294  aerial facility used to provide communications services or
  295  electric service, the authority shall provide a good faith
  296  estimate for any make-ready work necessary to enable the pole to
  297  support the requested collocation, including necessary pole
  298  replacement, within 60 days after receipt of a complete
  299  application. Make-ready work, including any pole replacement,
  300  must be completed within 60 days after written acceptance of the
  301  good faith estimate by the applicant.
  302         d.An authority may not require more make-ready work than
  303  is required to meet applicable codes or industry standards. Fees
  304  for make-ready work may not include costs related to preexisting
  305  damage or prior noncompliance. Fees for make-ready work,
  306  including any pole replacement, may not exceed actual costs or
  307  the amount charged to communications service providers other
  308  than wireless services providers for similar work and may not
  309  include any consultant fee or expense.
  310         (g) Except as provided in this chapter or specifically
  311  required by state law, an authority may not adopt or enforce any
  312  regulation on the placement or operation of communications
  313  facilities in the rights-of-way by a provider authorized by
  314  state law to operate in the rights-of-way and may not regulate
  315  any communications services or impose or collect any tax, fee,
  316  or charge not specifically authorized under state law.
  317         (h) This subsection does not authorize a person to
  318  collocate small wireless facilities on a privately owned utility
  319  pole, a utility pole owned by an electric cooperative or by a
  320  municipal electric utility, a privately owned wireless support
  321  structure, or other private property without the consent of the
  322  property owner.
  323         (i) This subsection does not authorize a person to
  324  collocate or attach small wireless facilities or micro wireless
  325  facilities on a utility pole or erect a wireless support
  326  structure in the right-of-way located within a retirement
  327  community that:
  328         1. Is deed-restricted as housing for older persons as
  329  defined in s. 760.29(4)(b);
  330         2. Has more than 5,000 residents; and
  331         3. Has underground utilities for electric transmission or
  332  distribution.
  333         (j) This subsection may not be construed to limit a local
  334  government’s authority to enforce historic preservation zoning
  335  regulations consistent with the preservation of local zoning
  336  authority under 47 U.S.C s. 332(c)(7), the requirements for
  337  facility modifications under 47 U.S.C. s. 1455(a), or the
  338  National Historic Preservation Act of 1966, as amended; and the
  339  regulations adopted to implement these laws.
  340         Section 2. This act shall take effect July 1, 2017.