Florida Senate - 2019 COMMITTEE AMENDMENT
Bill No. CS for SB 1000
Ì281892CÎ281892
LEGISLATIVE ACTION
Senate . House
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The Committee on Community Affairs (Hutson) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (b) of subsection (2) of section
6 202.20, Florida Statutes, is amended to read:
7 202.20 Local communications services tax conversion rates.—
8 (2)
9 (b) Except as otherwise provided in this subsection,
10 “replaced revenue sources,” as used in this section, means the
11 following taxes, charges, fees, or other impositions to the
12 extent that the respective local taxing jurisdictions were
13 authorized to impose them prior to July 1, 2000.
14 1. With respect to municipalities and charter counties and
15 the taxes authorized by s. 202.19(1):
16 a. The public service tax on telecommunications authorized
17 by former s. 166.231(9).
18 b. Franchise fees on cable service providers as authorized
19 by 47 U.S.C. s. 542.
20 c. The public service tax on prepaid calling arrangements.
21 d. Franchise fees on dealers of communications services
22 which use the public roads or rights-of-way, up to the limit set
23 forth in s. 337.401. For purposes of calculating rates under
24 this section, it is the legislative intent that charter counties
25 be treated as having had the same authority as municipalities to
26 impose franchise fees on recurring local telecommunication
27 service revenues prior to July 1, 2000. However, the Legislature
28 recognizes that the authority of charter counties to impose such
29 fees is in dispute, and the treatment provided in this section
30 is not an expression of legislative intent that charter counties
31 actually do or do not possess such authority.
32 e. Actual permit fees relating to placing or maintaining
33 facilities in or on public roads or rights-of-way, collected
34 from providers of long-distance, cable, and mobile
35 communications services for the fiscal year ending September 30,
36 1999; however, if a municipality or charter county elects the
37 option to charge permit fees pursuant to s. 337.401(3)(c)
38 337.401(3)(c)1.a., such fees shall not be included as a replaced
39 revenue source.
40 2. With respect to all other counties and the taxes
41 authorized in s. 202.19(1), franchise fees on cable service
42 providers as authorized by 47 U.S.C. s. 542.
43 Section 2. Subsection (3), paragraphs (e) and (f) of
44 subsection (6), and paragraphs (b), (c), (d), (e), (f), (g), and
45 (i) of subsection (7) of section 337.401, Florida Statutes, are
46 amended, and subsection (8) is added to that section, to read:
47 337.401 Use of right-of-way for utilities subject to
48 regulation; permit; fees.—
49 (3)(a) Because of the unique circumstances applicable to
50 providers of communications services, including, but not limited
51 to, the circumstances described in paragraph (e) and the fact
52 that federal and state law require the nondiscriminatory
53 treatment of providers of telecommunications services, and
54 because of the desire to promote competition among providers of
55 communications services, it is the intent of the Legislature
56 that municipalities and counties treat providers of
57 communications services in a nondiscriminatory and competitively
58 neutral manner when imposing rules or regulations governing the
59 placement or maintenance of communications facilities in the
60 public roads or rights-of-way. Rules or regulations imposed by a
61 municipality or county relating to providers of communications
62 services placing or maintaining communications facilities in its
63 roads or rights-of-way must be generally applicable to all
64 providers of communications services, taking into account the
65 distinct engineering, construction, operation, maintenance,
66 public works, and safety requirements of provider facilities,
67 and, notwithstanding any other law, may not require a provider
68 of communications services to apply for or enter into an
69 individual license, franchise, or other agreement with the
70 municipality or county as a condition of placing or maintaining
71 communications facilities in its roads or rights-of-way. In
72 addition to other reasonable rules or regulations that a
73 municipality or county may adopt relating to the placement or
74 maintenance of communications facilities in its roads or rights
75 of-way under this subsection or subsection (7), a municipality
76 or county may require a provider of communications services that
77 places or seeks to place facilities in its roads or rights-of
78 way to register with the municipality or county. To register, a
79 provider of communications services only may be required to
80 provide its name and to provide the name of the registrant; the
81 name, address, and telephone number of a contact person for the
82 registrant; the number of the registrant’s current certificate
83 of authorization issued by the Florida Public Service
84 Commission, the Federal Communications Commission, or the
85 Department of State; and any required proof of insurance or
86 self-insuring status adequate to defend and cover claims. A
87 municipality or county may not require registration renewal more
88 frequently than every 5 years, but may request that a provider
89 submit any updates during this period if the registration
90 information provided pursuant to this subsection changes. A
91 municipality or county may not require the provision of an
92 inventory of communications facilities, maps, locations of such
93 facilities, or other information by a registrant as a condition
94 of registration, renewal, or for any other purpose; provided,
95 however, that a municipality or county may require as part of a
96 permit application that the applicant identify at-grade
97 communications facilities within 25 feet of the proposed
98 installation location for the placement of at-grade
99 communications facilities. A municipality or county may not
100 require a provider to pay any fee, cost, or other charge for
101 registration or renewal thereof. It is the intent of the
102 Legislature that the placement, operation, maintenance,
103 upgrading, and extension of communications facilities not be
104 unreasonably interrupted or delayed through the permitting or
105 other local regulatory process. Except as provided in this
106 chapter or otherwise expressly authorized by chapter 202,
107 chapter 364, or chapter 610, a municipality or county may not
108 adopt or enforce any ordinance, regulation, or requirement as to
109 the placement or operation of communications facilities in a
110 right-of-way by a communications services provider authorized by
111 state or local law to operate in a right-of-way; regulate any
112 communications services; or impose or collect any tax, fee,
113 cost, charge, or exaction for the provision of communications
114 services over the communications services provider’s
115 communications facilities in a right-of-way.
116 (b) Registration described in paragraph (a) does not
117 establish a right to place or maintain, or priority for the
118 placement or maintenance of, a communications facility in roads
119 or rights-of-way of a municipality or county. Each municipality
120 and county retains the authority to regulate and manage
121 municipal and county roads or rights-of-way in exercising its
122 police power, subject to the limitations imposed in this section
123 and chapters 202 and 610. Any rules or regulations adopted by a
124 municipality or county which govern the occupation of its roads
125 or rights-of-way by providers of communications services must be
126 related to the placement or maintenance of facilities in such
127 roads or rights-of-way, must be reasonable and
128 nondiscriminatory, and may include only those matters necessary
129 to manage the roads or rights-of-way of the municipality or
130 county.
131 (c) Any municipality or county that, as of January 1, 2019,
132 elected to require permit fees from any provider of
133 communications services that uses or occupy municipal or county
134 road or rights-of-way pursuant to former paragraph (c) or
135 paragraph (j), Florida Statutes 2018, may continue to require
136 and collect such fees. A municipality or county that elected as
137 of such date to require permit fees may elect to forego such
138 fees as provided herein. A municipality or county that elected
139 as of such date not to require permit fees may not elect to
140 impose permit fees.
141 1. It is the intention of the state to treat all providers
142 of communications services that use or occupy municipal or
143 charter county roads or rights-of-way for the provision of
144 communications services in a nondiscriminatory and competitively
145 neutral manner with respect to the payment of permit fees.
146 Certain providers of communications services have been granted
147 by general law the authority to offset permit fees against
148 franchise or other fees while other providers of communications
149 services have not been granted this authority. In order to treat
150 all providers of communications services in a nondiscriminatory
151 and competitively neutral manner with respect to the payment of
152 permit fees, each municipality and charter county shall make an
153 election under either sub-subparagraph a. or sub-subparagraph b.
154 and must inform the Department of Revenue of the election by
155 certified mail by July 16, 2001. Such election shall take effect
156 October 1, 2001.
157 a.(I) The municipality or charter county may require and
158 collect permit fees from any providers of communications
159 services that use or occupy municipal or county roads or rights
160 of-way. All fees authorized permitted under this paragraph sub
161 subparagraph must be reasonable and commensurate with the direct
162 and actual cost of the regulatory activity, including issuing
163 and processing permits, plan reviews, physical inspection, and
164 direct administrative costs; must be demonstrable; and must be
165 equitable among users of the roads or rights-of-way. A fee
166 authorized permitted under this paragraph sub-subparagraph may
167 not: be offset against the tax imposed under chapter 202;
168 include the costs of roads or rights-of-way acquisition or roads
169 or rights-of-way rental; include any general administrative,
170 management, or maintenance costs of the roads or rights-of-way;
171 or be based on a percentage of the value or costs associated
172 with the work to be performed on the roads or rights-of-way. In
173 an action to recover amounts due for a fee not authorized
174 permitted under this paragraph sub-subparagraph, the prevailing
175 party may recover court costs and attorney attorney’s fees at
176 trial and on appeal. In addition to the limitations set forth in
177 this section, a fee levied by a municipality or charter county
178 under this paragraph sub-subparagraph may not exceed $100.
179 However, permit fees may not be imposed with respect to permits
180 that may be required for service drop lines not required to be
181 noticed under s. 556.108(5) s. 556.108(5)(a)2. or for any
182 activity that does not require the physical disturbance of the
183 roads or rights-of-way or does not impair access to or full use
184 of the roads or rights-of-way, including, but not limited to,
185 any emergency repairs of existing facilities, extensions of such
186 facilities for providing communications services to customers,
187 and the placement of micro wireless facilities in accordance
188 with subparagraph (7)(e)3.
189 (II) To ensure competitive neutrality among providers of
190 communications services, for any municipality or charter county
191 that elects to exercise its authority to require and collect
192 permit fees under this sub-subparagraph, the rate of the local
193 communications services tax imposed by such jurisdiction, as
194 computed under s. 202.20, shall automatically be reduced by a
195 rate of 0.12 percent.
196 b. Alternatively, the municipality or charter county may
197 elect not to require and collect permit fees from any provider
198 of communications services that uses or occupies municipal or
199 charter county roads or rights-of-way for the provision of
200 communications services; however, each municipality or charter
201 county that elects to operate under this sub-subparagraph
202 retains all authority to establish rules and regulations for
203 providers of communications services to use or occupy roads or
204 rights-of-way as provided in this section.
205 1. If a municipality or charter county elects to not
206 require permit fees operate under this sub-subparagraph, the
207 total rate for the local communications services tax as computed
208 under s. 202.20 for that municipality or charter county may be
209 increased by ordinance or resolution by an amount not to exceed
210 a rate of 0.12 percent. If a municipality or charter county
211 elects to increase its rate effective October 1, 2001, the
212 municipality or charter county shall inform the department of
213 such increased rate by certified mail postmarked on or before
214 July 16, 2001.
215 c. A municipality or charter county that does not make an
216 election as provided for in this subparagraph shall be presumed
217 to have elected to operate under the provisions of sub
218 subparagraph b.
219 2. Each noncharter county shall make an election under
220 either sub-subparagraph a. or sub-subparagraph b. and shall
221 inform the Department of Revenue of the election by certified
222 mail by July 16, 2001. Such election shall take effect October
223 1, 2001.
224 a. The noncharter county may elect to require and collect
225 permit fees from any providers of communications services that
226 use or occupy noncharter county roads or rights-of-way. All fees
227 permitted under this sub-subparagraph must be reasonable and
228 commensurate with the direct and actual cost of the regulatory
229 activity, including issuing and processing permits, plan
230 reviews, physical inspection, and direct administrative costs;
231 must be demonstrable; and must be equitable among users of the
232 roads or rights-of-way. A fee permitted under this sub
233 subparagraph may not: be offset against the tax imposed under
234 chapter 202; include the costs of roads or rights-of-way
235 acquisition or roads or rights-of-way rental; include any
236 general administrative, management, or maintenance costs of the
237 roads or rights-of-way; or be based on a percentage of the value
238 or costs associated with the work to be performed on the roads
239 or rights-of-way. In an action to recover amounts due for a fee
240 not permitted under this sub-subparagraph, the prevailing party
241 may recover court costs and attorney’s fees at trial and on
242 appeal. In addition to the limitations set forth in this
243 section, a fee levied by a noncharter county under this sub
244 subparagraph may not exceed $100. However, permit fees may not
245 be imposed with respect to permits that may be required for
246 service drop lines not required to be noticed under s.
247 556.108(5)(a)2. or for any activity that does not require the
248 physical disturbance of the roads or rights-of-way or does not
249 impair access to or full use of the roads or rights-of-way.
250 b. Alternatively, the noncharter county may elect not to
251 require and collect permit fees from any provider of
252 communications services that uses or occupies noncharter county
253 roads or rights-of-way for the provision of communications
254 services; however, each noncharter county that elects to operate
255 under this sub-subparagraph shall retain all authority to
256 establish rules and regulations for providers of communications
257 services to use or occupy roads or rights-of-way as provided in
258 this section.
259 2. If a noncharter county elects to not require permit fees
260 operate under this sub-subparagraph, the total rate for the
261 local communications services tax as computed under s. 202.20
262 for that noncharter county may be increased by ordinance or
263 resolution by an amount not to exceed a rate of 0.24 percent, to
264 replace the revenue the noncharter county would otherwise have
265 received from permit fees for providers of communications
266 services. If a noncharter county elects to increase its rate
267 effective October 1, 2001, the noncharter county shall inform
268 the department of such increased rate by certified mail
269 postmarked on or before July 16, 2001.
270 c. A noncharter county that does not make an election as
271 provided for in this subparagraph shall be presumed to have
272 elected to operate under the provisions of sub-subparagraph b.
273 3. Except as provided in this paragraph, municipalities and
274 counties retain all existing authority to require and collect
275 permit fees from users or occupants of municipal or county roads
276 or rights-of-way and to set appropriate permit fee amounts.
277 (d) After January 1, 2001, In addition to any other notice
278 requirements, a municipality must provide to the Secretary of
279 State, at least 10 days prior to consideration on first reading,
280 notice of a proposed ordinance governing a telecommunications
281 company placing or maintaining telecommunications facilities in
282 its roads or rights-of-way. After January 1, 2001, In addition
283 to any other notice requirements, a county must provide to the
284 Secretary of State, at least 15 days prior to consideration at a
285 public hearing, notice of a proposed ordinance governing a
286 telecommunications company placing or maintaining
287 telecommunications facilities in its roads or rights-of-way. The
288 notice required by this paragraph must be published by the
289 Secretary of State on a designated Internet website. The failure
290 of a municipality or county to provide such notice does not
291 render the ordinance invalid, provided that enforcement of such
292 ordinance must be suspended until 30 days after the municipality
293 or county provides the required notice.
294 (e) The authority of municipalities and counties to require
295 franchise fees from providers of communications services, with
296 respect to the provision of communications services, is
297 specifically preempted by the state because of unique
298 circumstances applicable to providers of communications services
299 when compared to other utilities occupying municipal or county
300 roads or rights-of-way. Providers of communications services may
301 provide similar services in a manner that requires the placement
302 of facilities in municipal or county roads or rights-of-way or
303 in a manner that does not require the placement of facilities in
304 such roads or rights-of-way. Although similar communications
305 services may be provided by different means, the state desires
306 to treat providers of communications services in a
307 nondiscriminatory manner and to have the taxes, franchise fees,
308 and other fees, costs, and financial or regulatory exactions
309 paid by or imposed on providers of communications services be
310 competitively neutral. Municipalities and counties retain all
311 existing authority, if any, to collect franchise fees from users
312 or occupants of municipal or county roads or rights-of-way other
313 than providers of communications services, and the provisions of
314 this subsection shall have no effect upon this authority. The
315 provisions of this subsection do not restrict the authority, if
316 any, of municipalities or counties or other governmental
317 entities to receive reasonable rental fees based on fair market
318 value for the use of public lands and buildings on property
319 outside the public roads or rights-of-way for the placement of
320 communications antennas and towers.
321 (f) Except as expressly allowed or authorized by general
322 law and except for the rights-of-way permit fees subject to
323 paragraph (c), a municipality or county may not levy on a
324 provider of communications services a tax, fee, or other charge
325 or imposition for operating as a provider of communications
326 services within the jurisdiction of the municipality or county
327 which is in any way related to using its roads or rights-of-way.
328 A municipality or county may not require or solicit in-kind
329 compensation, except as otherwise provided in s. 202.24(2)(c)8.
330 or s. 610.109, provided that the in-kind compensation is not a
331 franchise fee under federal law. Nothing in this paragraph shall
332 impair any ordinance or agreement in effect on May 22, 1998, or
333 any voluntary agreement entered into subsequent to that date,
334 which provides for or allows in-kind compensation by a
335 telecommunications company.
336 (g) A municipality or county may not use its authority over
337 the placement of facilities in its roads and rights-of-way as a
338 basis for asserting or exercising regulatory control over a
339 provider of communications services regarding matters within the
340 exclusive jurisdiction of the Florida Public Service Commission
341 or the Federal Communications Commission, including, but not
342 limited to, the operations, systems, equipment, technology,
343 qualifications, services, service quality, service territory,
344 and prices of a provider of communications services. A
345 municipality or county may not require any permit for the
346 maintenance, repair, replacement, or upgrade of existing aerial
347 wireline communications facilities on utility poles or for
348 aerial wireline facilities between existing wireline
349 communications facility attachments on utility poles by a
350 communications services provider; provided, however, that a
351 municipality or county may require a right-of-way permit for
352 work that involves excavation, closure of a sidewalk, or closure
353 of a vehicular lane, unless the provider is making emergency
354 restoration or repair work to existing facilities. Any permit
355 application required by an authority under this section for the
356 placement of communications facilities must be processed and
357 acted upon consistent with the timeframes provided in
358 subparagraphs (7)(d)7.-9. In addition, a municipality or county
359 may not require any permit or other approval, fee, charge, or
360 cost, or other exaction for the maintenance, repair,
361 replacement, or upgrade of existing aerial or underground
362 communications facilities located on private property outside of
363 the public rights-of-way.
364 (h) A provider of communications services that has obtained
365 permission to occupy the roads or rights-of-way of an
366 incorporated municipality pursuant to s. 362.01 or that is
367 otherwise lawfully occupying the roads or rights-of-way of a
368 municipality or county shall not be required to obtain consent
369 to continue such lawful occupation of those roads or rights-of
370 way; however, nothing in this paragraph shall be interpreted to
371 limit the power of a municipality or county to adopt or enforce
372 reasonable rules or regulations as provided in this section and
373 consistent with chapters 202, 364, and 610. Any such rules or
374 regulations must be in writing, and registered providers of
375 communications services in the municipality or county must be
376 given at least 60 days’ advance written notice of any changes to
377 the rules and regulations.
378 (i) Except as expressly provided in this section, this
379 section does not modify the authority of municipalities and
380 counties to levy the tax authorized in chapter 202 or the duties
381 of providers of communications services under ss. 337.402
382 337.404. This section does not apply to building permits, pole
383 attachments, or private roads, private easements, and private
384 rights-of-way.
385 (j) Pursuant to this paragraph, any county or municipality
386 may by ordinance change either its election made on or before
387 July 16, 2001, under paragraph (c) or an election made under
388 this paragraph.
389 1.a. If a municipality or charter county changes its
390 election under this paragraph in order to exercise its authority
391 to require and collect permit fees in accordance with this
392 subsection, the rate of the local communications services tax
393 imposed by such jurisdiction pursuant to ss. 202.19 and 202.20
394 shall automatically be reduced by the sum of 0.12 percent plus
395 the percentage, if any, by which such rate was increased
396 pursuant to sub-subparagraph (c)1.b.
397 b. If a municipality or charter county changes its election
398 under this paragraph in order to discontinue requiring and
399 collecting permit fees, the rate of the local communications
400 services tax imposed by such jurisdiction pursuant to ss. 202.19
401 and 202.20 may be increased by ordinance or resolution by an
402 amount not to exceed 0.24 percent.
403 2.a. If a noncharter county changes its election under this
404 paragraph in order to exercise its authority to require and
405 collect permit fees in accordance with this subsection, the rate
406 of the local communications services tax imposed by such
407 jurisdiction pursuant to ss. 202.19 and 202.20 shall
408 automatically be reduced by the percentage, if any, by which
409 such rate was increased pursuant to sub-subparagraph (c)2.b.
410 b. If a noncharter county changes its election under this
411 paragraph in order to discontinue requiring and collecting
412 permit fees, the rate of the local communications services tax
413 imposed by such jurisdiction pursuant to ss. 202.19 and 202.20
414 may be increased by ordinance or resolution by an amount not to
415 exceed 0.24 percent.
416 3.a. Any change of election pursuant to this paragraph and
417 any tax rate change resulting from such change of election shall
418 be subject to the notice requirements of s. 202.21; however, no
419 such change of election shall become effective prior to January
420 1, 2003.
421 b. Any county or municipality changing its election under
422 this paragraph in order to exercise its authority to require and
423 collect permit fees shall, in addition to complying with the
424 notice requirements under s. 202.21, provide to all dealers
425 providing communications services in such jurisdiction written
426 notice of such change of election by September 1 immediately
427 preceding the January 1 on which such change of election becomes
428 effective. For purposes of this sub-subparagraph, dealers
429 providing communications services in such jurisdiction shall
430 include every dealer reporting tax to such jurisdiction pursuant
431 to s. 202.37 on the return required under s. 202.27 to be filed
432 on or before the 20th day of May immediately preceding the
433 January 1 on which such change of election becomes effective.
434 (k) Notwithstanding the provisions of s. 202.19, when a
435 local communications services tax rate is changed as a result of
436 an election made or changed under this subsection, such rate may
437 shall not be rounded to tenths.
438 (6)
439 (e) This subsection does not alter any provision of this
440 section or s. 202.24 relating to taxes, fees, or other charges
441 or impositions by a municipality or county on a dealer of
442 communications services or authorize that any charges be
443 assessed on a dealer of communications services, except as
444 specifically set forth herein. A municipality or county may not
445 charge a pass-through provider any amounts other than the
446 charges under this subsection as a condition to the placement or
447 maintenance of a communications facility in the roads or rights
448 of-way of a municipality or county by a pass-through provider,
449 except that a municipality or county may impose permit fees on a
450 pass-through provider consistent with paragraph (3)(c) if the
451 municipality or county elects to exercise its authority to
452 collect permit fees under paragraph (3)(c).
453 (f) The charges under this subsection do not apply to
454 communications facilities placed in a municipality’s or county’s
455 rights-of-way prior to the effective date of this subsection
456 with permission from the municipality or county, if any was
457 required, except to the extent the facilities of a pass-through
458 provider were subject to per linear foot or mile charges in
459 effect as of October 1, 2001, in which case the municipality or
460 county may only impose on a pass-through provider charges
461 consistent with paragraph (b) or paragraph (c) for such
462 facilities. Notwithstanding the foregoing, this subsection does
463 not impair any written agreement between a pass-through provider
464 and a municipality or county imposing per linear foot or mile
465 charges for communications facilities placed in municipal or
466 county roads or rights-of-way that is in effect prior to the
467 effective date of this subsection. Upon the termination or
468 expiration of any such written agreement, any charges imposed
469 must shall be consistent with this section paragraph (b) or
470 paragraph (c). Notwithstanding the foregoing, until October 1,
471 2005, this subsection shall not affect a municipality or county
472 continuing to impose charges in excess of the charges authorized
473 in this subsection on facilities of a pass-through provider that
474 is not a dealer of communications services in the state under
475 chapter 202, but only to the extent such charges were imposed by
476 municipal or county ordinance or resolution adopted prior to
477 February 1, 2002. Effective October 1, 2005, any charges imposed
478 shall be consistent with paragraph (b) or paragraph (c).
479 (7)
480 (b) As used in this subsection, the term:
481 1. “Antenna” means communications equipment that transmits
482 or receives electromagnetic radio frequency signals used in
483 providing wireless services.
484 2. “Applicable codes” means uniform building, fire,
485 electrical, plumbing, or mechanical codes adopted by a
486 recognized national code organization or local amendments to
487 those codes enacted solely to address threats of destruction of
488 property or injury to persons, or local codes or ordinances
489 adopted to implement this subsection. The term includes
490 objective design standards adopted by ordinance that may require
491 a new utility pole that replaces an existing utility pole to be
492 of substantially similar design, material, and color or that may
493 require reasonable spacing requirements concerning the location
494 of ground-mounted equipment. The term includes objective design
495 standards adopted by ordinance that may require a small wireless
496 facility to meet reasonable location context, color, stealth,
497 and concealment requirements; however, such design standards may
498 be waived by the authority upon a showing that the design
499 standards are not reasonably compatible for the particular
500 location of a small wireless facility or that the design
501 standards impose an excessive expense. The waiver shall be
502 granted or denied within 45 days after the date of the request.
503 3. “Applicant” means a person who submits an application
504 and is a wireless provider.
505 4. “Application” means a request submitted by an applicant
506 to an authority for a permit to collocate small wireless
507 facilities or to place a new utility pole used to support a
508 small wireless facility.
509 5. “Authority” means a county or municipality having
510 jurisdiction and control of the rights-of-way of any public
511 road. The term does not include the Department of
512 Transportation. Rights-of-way under the jurisdiction and control
513 of the department are excluded from this subsection.
514 6. “Authority utility pole” means a utility pole owned by
515 an authority in the right-of-way. The term does not include a
516 utility pole owned by a municipal electric utility, a utility
517 pole used to support municipally owned or operated electric
518 distribution facilities, or a utility pole located in the right
519 of-way within:
520 a. A retirement community that:
521 (I) Is deed restricted as housing for older persons as
522 defined in s. 760.29(4)(b);
523 (II) Has more than 5,000 residents; and
524 (III) Has underground utilities for electric transmission
525 or distribution.
526 b. A municipality that:
527 (I) Is located on a coastal barrier island as defined in s.
528 161.053(1)(b)3.;
529 (II) Has a land area of less than 5 square miles;
530 (III) Has less than 10,000 residents; and
531 (IV) Has, before July 1, 2017, received referendum approval
532 to issue debt to finance municipal-wide undergrounding of its
533 utilities for electric transmission or distribution.
534 7. “Collocate” or “collocation” means to install, mount,
535 maintain, modify, operate, or replace one or more wireless
536 facilities on, under, within, or adjacent to a wireless support
537 structure or utility pole. The term does not include the
538 installation of a new utility pole or wireless support structure
539 in the public rights-of-way.
540 8. “FCC” means the Federal Communications Commission.
541 9. “Micro wireless facility” means a small wireless
542 facility having dimensions no larger than 24 inches in length,
543 15 inches in width, and 12 inches in height and an exterior
544 antenna, if any, no longer than 11 inches.
545 10. “Small wireless facility” means a wireless facility
546 that meets the following qualifications:
547 a. Each antenna associated with the facility is located
548 inside an enclosure of no more than 6 cubic feet in volume or,
549 in the case of antennas that have exposed elements, each antenna
550 and all of its exposed elements could fit within an enclosure of
551 no more than 6 cubic feet in volume; and
552 b. All other wireless equipment associated with the
553 facility is cumulatively no more than 28 cubic feet in volume.
554 The following types of associated ancillary equipment are not
555 included in the calculation of equipment volume: electric
556 meters, concealment elements, telecommunications demarcation
557 boxes, ground-based enclosures, grounding equipment, power
558 transfer switches, cutoff switches, vertical cable runs for the
559 connection of power and other services, and utility poles or
560 other support structures.
561 11. “Utility pole” means a pole or similar structure that
562 is used in whole or in part to provide communications services
563 or for electric distribution, lighting, traffic control,
564 signage, or a similar function. The term includes the vertical
565 support structure for traffic lights but does not include a
566 horizontal structure to which signal lights or other traffic
567 control devices are attached and does not include a pole or
568 similar structure 15 feet in height or less unless an authority
569 grants a waiver for such pole.
570 12. “Wireless facility” means equipment at a fixed location
571 which enables wireless communications between user equipment and
572 a communications network, including radio transceivers,
573 antennas, wires, coaxial or fiber-optic cable or other cables,
574 regular and backup power supplies, and comparable equipment,
575 regardless of technological configuration, and equipment
576 associated with wireless communications. The term includes small
577 wireless facilities. The term does not include:
578 a. The structure or improvements on, under, within, or
579 adjacent to the structure on which the equipment is collocated;
580 b. Wireline backhaul facilities; or
581 c. Coaxial or fiber-optic cable that is between wireless
582 structures or utility poles or that is otherwise not immediately
583 adjacent to or directly associated with a particular antenna.
584 13. “Wireless infrastructure provider” means a person who
585 has been certificated under chapter 364 to provide
586 telecommunications service in the state or under chapter 610 to
587 provide cable or video services in this state, or that person’s
588 affiliate, and who builds or installs wireless communication
589 transmission equipment, wireless facilities, or wireless support
590 structures but is not a wireless services provider.
591 14. “Wireless provider” means a wireless infrastructure
592 provider or a wireless services provider.
593 15. “Wireless services” means any services provided using
594 licensed or unlicensed spectrum, whether at a fixed location or
595 mobile, using wireless facilities.
596 16. “Wireless services provider” means a person who
597 provides wireless services.
598 17. “Wireless support structure” means a freestanding
599 structure, such as a monopole, a guyed or self-supporting tower,
600 or another existing or proposed structure designed to support or
601 capable of supporting wireless facilities. The term does not
602 include a utility pole, pedestal, or other support structure for
603 ground-based equipment not mounted on a utility pole and less
604 than 10 feet in height.
605 (c) Except as provided in this subsection, an authority may
606 not prohibit, regulate, or charge for the collocation of small
607 wireless facilities in the public rights-of-way or for the
608 installation, maintenance, modification, operation, or
609 replacement of utility poles used for the collocation of small
610 wireless facilities in the public rights-of-way.
611 (d) An authority may require a registration process and
612 permit fees in accordance with subsection (3). An authority
613 shall accept applications for permits and shall process and
614 issue permits subject to the following requirements:
615 1. An authority may not directly or indirectly require an
616 applicant to perform services unrelated to the collocation for
617 which approval is sought, such as in-kind contributions to the
618 authority, including reserving fiber, conduit, or pole space for
619 the authority.
620 2. An applicant may not be required to provide more
621 information to obtain a permit than is necessary to demonstrate
622 the applicant’s compliance with applicable codes for the
623 placement of small wireless facilities in the locations
624 identified in the application. An applicant may not be required
625 to provide inventories, maps, or locations of communications
626 facilities in the right-of-way other than as necessary to avoid
627 interference with other at-grade facilities located at the
628 specific location proposed for a small wireless facility or
629 within 25 feet of such location.
630 3. An authority may not:
631 a. Require the placement of small wireless facilities on
632 any specific utility pole or category of poles; or
633 b. Require the placement of multiple antenna systems on a
634 single utility pole;
635 c. Require a demonstration that collocation of a small
636 wireless facility on an existing structure is not legally or
637 technically possible as a condition for granting a permit for
638 the collocation of a small wireless facility on a new utility
639 pole;
640 d. Require compliance with an authority’s provisions
641 regarding placement of small wireless facilities or a new
642 utility pole used to support a small wireless facility in
643 rights-of-way under the control of the department, unless the
644 authority has received a delegation from the department for the
645 location of the small wireless facility or utility pole; or
646 require such compliance as a condition to receive a permit that
647 is ancillary to the permit for collocation of a small wireless
648 facility, including an electrical permit;
649 e. Require a meeting before filing an application;
650 f. Require direct or indirect public notification or a
651 public meeting for the placement of communication facilities in
652 the right-of-way;
653 g. Limit the size or configuration of a small wireless
654 facility or any of its components, if the small wireless
655 facility complies with the size limits in this subsection;
656 h. Prohibit the installation of a new utility pole used to
657 support the collocation of a small wireless facility if the
658 installation otherwise meets the requirements of this
659 subsection;
660 i. Require that any component of a small wireless facility
661 be placed underground; or
662 j. Require that any existing communication facility be
663 placed underground, except as provided in ss. 337.403 and
664 337.404.
665 4. Subject to sub-subparagraph (f)6.b., an authority may
666 not limit the placement, by minimum separation distances, of
667 small wireless facilities, utility poles on which small wireless
668 facilities are or will be collocated, or other at-grade
669 communications facilities by minimum separation distances.
670 However, within 14 days after the date of filing the
671 application, an authority may request that the proposed location
672 of a small wireless facility be moved to another location in the
673 right-of-way and placed on an alternative authority utility pole
674 or support structure or placed on may place a new utility pole.
675 The authority and the applicant may negotiate the alternative
676 location, including any objective design standards and
677 reasonable spacing requirements for ground-based equipment, for
678 30 days after the date of the request. At the conclusion of the
679 negotiation period, if the alternative location is accepted by
680 the applicant, the applicant must notify the authority of such
681 acceptance and the application shall be deemed granted for any
682 new location for which there is agreement and all other
683 locations in the application. If an agreement is not reached,
684 the applicant must notify the authority of such nonagreement and
685 the authority must grant or deny the original application within
686 90 days after the date the application was filed. A request for
687 an alternative location, an acceptance of an alternative
688 location, or a rejection of an alternative location must be in
689 writing and provided by electronic mail.
690 5. An authority shall limit the height of a small wireless
691 facility to 10 feet above the utility pole or structure upon
692 which the small wireless facility is to be collocated. Unless
693 waived by an authority, the height for a new utility pole is
694 limited to the tallest existing utility pole as of July 1, 2017,
695 located in the same right-of-way, other than a utility pole for
696 which a waiver has previously been granted, measured from grade
697 in place within 500 feet of the proposed location of the small
698 wireless facility. If there is no utility pole within 500 feet,
699 the authority shall limit the height of the utility pole to 50
700 feet.
701 6. Except as provided in subparagraphs 4. and 5., The
702 installation by a communications services provider of a utility
703 pole in the public rights-of-way, other than a utility pole used
704 designed to support a small wireless facility, is shall be
705 subject to authority rules or regulations governing the
706 placement of utility poles in the public rights-of-way and is
707 shall be subject to the application review timeframes in this
708 subsection.
709 7. Within 14 days after receiving an application, an
710 authority must determine and notify the applicant by electronic
711 mail as to whether the application is complete. If an
712 application is deemed incomplete, the authority must
713 specifically identify the missing information. An application is
714 deemed complete if the authority fails to provide notification
715 to the applicant within 14 days.
716 8. An application must be processed on a nondiscriminatory
717 basis. A complete application is deemed approved if an authority
718 fails to approve or deny the application within 60 days after
719 receipt of the application. If an authority does not use the 30
720 day negotiation period provided in subparagraph 4., the parties
721 may mutually agree to extend the 60-day application review
722 period. The authority shall grant or deny the application at the
723 end of the extended period. A permit issued pursuant to an
724 approved application shall remain effective for 1 year unless
725 extended by the authority.
726 9. An authority must notify the applicant of approval or
727 denial by electronic mail. An authority shall approve a complete
728 application unless it does not meet the authority’s applicable
729 codes. If the application is denied, the authority must specify
730 in writing the basis for denial, including the specific code
731 provisions on which the denial was based, and send the
732 documentation to the applicant by electronic mail on the day the
733 authority denies the application. The applicant may cure the
734 deficiencies identified by the authority and resubmit the
735 application within 30 days after notice of the denial is sent to
736 the applicant. The authority shall approve or deny the revised
737 application within 30 days after receipt or the application is
738 deemed approved. The review of a revised application is Any
739 subsequent review shall be limited to the deficiencies cited in
740 the denial. The availability of any subsequent review by the
741 authority does not bar review of a denial in a court of
742 competent jurisdiction.
743 10. An applicant seeking to collocate small wireless
744 facilities within the jurisdiction of a single authority may, at
745 the applicant’s discretion, file a consolidated application and
746 receive a single permit for the collocation of up to 30 small
747 wireless facilities. If the application includes multiple small
748 wireless facilities, an authority may separately address small
749 wireless facility collocations for which incomplete information
750 has been received or which are denied.
751 11. An authority may deny a proposed collocation of a small
752 wireless facility in the public rights-of-way if the proposed
753 collocation:
754 a. Materially interferes with the safe operation of traffic
755 control equipment.
756 b. Materially interferes with sight lines or clear zones
757 for transportation, pedestrians, or public safety purposes.
758 c. Materially interferes with compliance with the Americans
759 with Disabilities Act or similar federal or state standards
760 regarding pedestrian access or movement.
761 d. Materially fails to comply with the 2010 edition of the
762 Florida Department of Transportation Utility Accommodation
763 Manual.
764 e. Fails to comply with applicable codes.
765 f. Fails to comply with objective design standards
766 authorized under subparagraph (f)6.
767 12. An authority may adopt by ordinance provisions for
768 insurance coverage, indemnification, performance bonds, security
769 funds, force majeure, abandonment, authority liability, or
770 authority warranties. Such provisions must be reasonable and
771 nondiscriminatory. An authority may require a construction bond
772 to secure restoration of the postconstruction rights-of-way to
773 its preconstruction condition. However, such bond must be time
774 limited to no more than 1 year after the construction to which
775 the bond applies is completed. For any financial obligation
776 required by an authority allowed under this section, the
777 authority shall accept a letter of credit or similar financial
778 instrument issued by any financial institution that is
779 authorized to do business within the United States, provided
780 that a claim against the financial instrument may be made by
781 electronic means, including by facsimile. A provider of
782 communications services may add an authority to any existing
783 bond, insurance policy, or other relevant financial instrument,
784 and the authority must accept such proof of coverage without any
785 conditions. An authority may not require a communications
786 services provider to indemnify it for liabilities not caused by
787 the provider, including liabilities arising from the authority’s
788 negligence, gross negligence, or willful conduct.
789 13. Collocation of a small wireless facility on an
790 authority utility pole does not provide the basis for the
791 imposition of an ad valorem tax on the authority utility pole.
792 14. An authority may reserve space on authority utility
793 poles for future public safety uses. However, a reservation of
794 space may not preclude collocation of a small wireless facility.
795 If replacement of the authority utility pole is necessary to
796 accommodate the collocation of the small wireless facility and
797 the future public safety use, the pole replacement is subject to
798 make-ready provisions and the replaced pole shall accommodate
799 the future public safety use.
800 15. A structure granted a permit and installed pursuant to
801 this subsection shall comply with chapter 333 and federal
802 regulations pertaining to airport airspace protections.
803 (e) An authority may not require any permit or other
804 approval or require fees, or other charges, costs, or other
805 exactions for:
806 1. Routine maintenance or repair work, including, but not
807 limited to, emergency repairs of existing facilities, or
808 extensions of such facilities, for providing communications
809 services to customers;
810 2. Replacement of existing wireless facilities with
811 wireless facilities that are substantially similar or of the
812 same or smaller size; or
813 3. Installation, placement, maintenance, or replacement of
814 micro wireless facilities that are suspended on cables strung
815 between existing utility poles in compliance with applicable
816 codes by or for a communications services provider authorized to
817 occupy the rights-of-way and who is remitting taxes under
818 chapter 202. An authority may require an initial letter from or
819 on behalf of such provider, which is effective upon filing,
820 attesting that the micro wireless facility dimensions comply
821 with the limits of this subsection. The authority may not
822 require any additional filing or other information as long as
823 the provider is deploying the same, a substantially similar, or
824 a smaller size micro wireless facility equipment.
825
826 Notwithstanding this paragraph, an authority may require a
827 right-of-way permit for work that involves excavation, closure
828 of a sidewalk, or closure of a vehicular lane unless the
829 provider is making emergency restoration or repair work to
830 existing facilities.
831 (f) Collocation of small wireless facilities on authority
832 utility poles is subject to the following requirements:
833 1. An authority may not enter into an exclusive arrangement
834 with any person for the right to attach equipment to authority
835 utility poles.
836 2. The rates and fees for collocations on authority utility
837 poles must be nondiscriminatory, regardless of the services
838 provided by the collocating person.
839 3. The rate to collocate small wireless facilities on an
840 authority utility pole may not exceed $150 per pole annually.
841 4. Agreements between authorities and wireless providers
842 that are in effect on July 1, 2017, and that relate to the
843 collocation of small wireless facilities in the right-of-way,
844 including the collocation of small wireless facilities on
845 authority utility poles, remain in effect, subject to applicable
846 termination provisions. The wireless provider may accept the
847 rates, fees, and terms established under this subsection for
848 small wireless facilities and utility poles that are the subject
849 of an application submitted after the rates, fees, and terms
850 become effective.
851 5. A person owning or controlling an authority utility pole
852 shall offer rates, fees, and other terms that comply with this
853 subsection. By the later of January 1, 2018, or 3 months after
854 receiving a request to collocate its first small wireless
855 facility on a utility pole owned or controlled by an authority,
856 the person owning or controlling the authority utility pole
857 shall make available, through ordinance or otherwise, rates,
858 fees, and terms for the collocation of small wireless facilities
859 on the authority utility pole which comply with this subsection.
860 a. The rates, fees, and terms must be nondiscriminatory and
861 competitively neutral and must comply with this subsection.
862 b. For an authority utility pole that supports an aerial
863 facility used to provide communications services or electric
864 service, the parties shall comply with the process for make
865 ready work under 47 U.S.C. s. 224 and implementing regulations.
866 The good faith estimate of the person owning or controlling the
867 pole for any make-ready work necessary to enable the pole to
868 support the requested collocation must include pole replacement
869 if necessary.
870 c. For an authority utility pole that does not support an
871 aerial facility used to provide communications services or
872 electric service, the authority shall provide a good faith
873 estimate for any make-ready work necessary to enable the pole to
874 support the requested collocation, including necessary pole
875 replacement, within 60 days after receipt of a complete
876 application. Make-ready work, including any pole replacement,
877 must be completed within 60 days after written acceptance of the
878 good faith estimate by the applicant. Alternatively, an
879 authority may require the applicant seeking to collocate a small
880 wireless facility to provide a make-ready estimate at the
881 applicant’s expense for the work necessary to support the small
882 wireless facility, including pole replacement, and perform the
883 make-ready work. If pole replacement is required, the scope of
884 the make-ready estimate is limited to the design, fabrication,
885 and installation of a utility pole that is substantially similar
886 in color and composition. The authority may not condition or
887 restrict the manner in which the applicant obtains, develops, or
888 provides the estimate or conducts the make-ready work subject to
889 usual construction restoration standards for work in the right
890 of-way. The replaced or altered utility pole shall remain the
891 property of the authority.
892 d. An authority may not require more make-ready work than
893 is required to meet applicable codes or industry standards. Fees
894 for make-ready work may not include costs related to preexisting
895 damage or prior noncompliance. Fees for make-ready work,
896 including any pole replacement, may not exceed actual costs or
897 the amount charged to communications services providers other
898 than wireless services providers for similar work and may not
899 include any consultant fee or expense.
900 6. An authority may require wireless providers to comply
901 with objective design standards adopted by ordinance. The
902 ordinance may require:
903 a. A new utility pole that replaces an existing utility
904 pole to be of substantially similar design, material, and color;
905 b. Reasonable spacing requirements concerning the location
906 of a ground-mounted component of a small wireless facility which
907 does not exceed 15 feet from the associated support structure;
908 or
909 c. A small wireless facility to meet reasonable location
910 context, color, camouflage, and concealment requirements,
911 subject to the limitations in this subsection.
912
913 Such design standards under this subparagraph may be waived by
914 the authority upon a showing that the design standards are not
915 reasonably compatible for the particular location of a small
916 wireless facility or are technically infeasible or that the
917 design standards impose an excessive expense. The waiver must be
918 granted or denied within 45 days after the date of the request.
919 (g) For any applications filed before the effective date of
920 ordinances implementing this subsection, an authority may apply
921 current ordinances relating to placement of communications
922 facilities in the right-of-way related to registration,
923 permitting, insurance coverage, indemnification, performance
924 bonds, security funds, force majeure, abandonment, authority
925 liability, or authority warranties. Permit application
926 requirements and small wireless facility placement requirements,
927 including utility pole height limits, that conflict with this
928 subsection must shall be waived by the authority. An authority
929 may not institute, either expressly or de facto, a moratorium,
930 zoning-in-progress, or other mechanism that would prohibit or
931 delay the filing, receiving, or processing of registrations,
932 applications, or issuing of permits or other approvals for the
933 collocation of small wireless facilities or the installation,
934 modification, or replacement of utility poles used to support
935 the collocation of small wireless facilities.
936 (i) A wireless provider shall, in relation to a small
937 wireless facility, utility pole, or wireless support structure
938 in the public rights-of-way, comply with nondiscriminatory
939 undergrounding requirements of an authority that prohibit above
940 ground structures in public rights-of-way. Any such requirements
941 may be waived by the authority.
942 (8)(a) Any person aggrieved by a violation of this section
943 may bring a civil action in a United States District Court or in
944 any other court of competent jurisdiction.
945 (b) The court may:
946 1. Grant temporary or permanent injunctions on terms as it
947 may deem reasonable to prevent or restrain violations of this
948 section; and
949 2. Direct the recovery of full costs, including awarding
950 reasonable attorney fees, to the party who prevails.
951 Section 3. This act shall take effect July 1, 2019.
952
953 ================= T I T L E A M E N D M E N T ================
954 And the title is amended as follows:
955 Delete everything before the enacting clause
956 and insert:
957 A bill to be entitled
958 An act relating to communications services; amending
959 s. 202.20, F.S.; conforming a cross-reference;
960 amending s. 337.401, F.S.; revising legislative
961 intent; specifying limitations and prohibitions on
962 municipalities and counties relating to registrations
963 and renewals of communications services providers;
964 authorizing municipalities and counties to require
965 certain information as part of a permit application
966 and to request certain updates from providers;
967 prohibiting municipalities and counties from requiring
968 a payment of fees, costs, or charges for provider
969 registration or renewal; prohibiting municipalities
970 and counties from adopting or enforcing certain
971 ordinances, regulations, or requirements; specifying
972 limitations on municipal and county authority to
973 regulate and manage municipal and county roads or
974 rights-of-way; prohibiting certain municipalities and
975 counties from electing to impose permit fees;
976 providing retroactive applicability; authorizing
977 certain municipalities and counties to continue to
978 require and collect such fees; deleting obsolete
979 provisions; specifying activities for which permit
980 fees may not be imposed; deleting certain provisions
981 relating to municipality, charter county, and
982 noncharter county elections to impose, or not to
983 impose, permit fees; requiring that enforcement of
984 certain ordinances must be suspended until certain
985 conditions are met; revising legislative intent
986 relating to the imposition of certain fees, costs, and
987 exactions on providers; specifying a condition for
988 certain in-kind compensation; specifying prohibited
989 acts by municipalities and countries in the use of
990 their authority over the placement of facilities for
991 certain purposes; authorizing municipalities and
992 counties to require a right-of-way permit for certain
993 purposes; providing requirements for processing
994 certain permit applications; prohibiting
995 municipalities and counties from certain actions
996 relating to certain aerial or underground
997 communications facilities; specifying limitations and
998 requirements for certain municipal and county rules
999 and regulations; revising definitions under the
1000 Advanced Wireless Infrastructure Deployment Act;
1001 prohibiting certain actions by an authority relating
1002 to certain utility poles; prohibiting authorities from
1003 requiring permit applicants to provide certain
1004 information, except under certain circumstances;
1005 adding prohibited acts by authorities relating to
1006 small wireless facilities, application requirements,
1007 public notification and public meetings, and the
1008 placement of certain facilities; revising
1009 applicability of authority rules and regulations
1010 governing the placement of utility poles in the public
1011 rights-of-way; providing construction relating to
1012 judicial review of certain application denials; adding
1013 grounds for an authority’s denial of a proposed
1014 collocation of a small wireless facility in the public
1015 rights-of-way; deleting an authority’s authorization
1016 to adopt ordinances for performance bonds and security
1017 funds; authorizing an authority to require a
1018 construction bond, subject to certain conditions;
1019 requiring authorities to accept certain financial
1020 instruments for certain financial obligations;
1021 authorizing providers to add authorities to certain
1022 financial instruments; prohibiting an authority from
1023 requiring a provider to indemnify the authority for
1024 certain liabilities; prohibiting an authority from
1025 requiring a permit, approval, fees, charges, costs, or
1026 exactions for certain activities; authorizing and
1027 limiting filings the authority may require relating to
1028 micro wireless facility equipment; providing an
1029 exception to a provision authorizing an authority to
1030 require a certain right-of-way permit; authorizing
1031 authorities to require wireless providers to comply
1032 with certain objective design standards adopted by
1033 ordinance; authorizing the authority to waive such
1034 design standards under certain circumstances;
1035 providing a requirement for the waiver; revising an
1036 authority’s authorization to apply certain ordinances
1037 to applications filed before a certain timeframe;
1038 prohibiting authorities from certain actions relating
1039 to registrations, applications, permits, and approvals
1040 in relation to small wireless facilities; deleting a
1041 requirement for wireless providers to comply with
1042 certain undergrounding requirements; authorizing a
1043 civil action for violations; authorizing actions a
1044 court may take; providing an effective date.