Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1592
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/01/2021           .                                

       The Committee on Finance and Tax (Burgess) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete lines 141 - 279
    4  and insert:
    5  existed on July 1, 2021, except as authorized by this section
    6  and agreed to by the parties.
    7         (2)As used in this section, the term:
    8         (a)“Attachment” means a wire or cable affixed to a utility
    9  pole or structure in the communications space or in a duct,
   10  conduit, or right-of-way owned or controlled by a municipal
   11  electric utility.
   12         (b)“Broadband provider” means a person who provides fixed,
   13  terrestrial broadband service. The term includes a person who
   14  provides or offers additional services to the public in addition
   15  to broadband service.
   16         (c)“Broadband service” means a service that provides high
   17  speed access to the Internet at a rate of at least 25 megabits
   18  per second in the downstream direction and at least 3 megabits
   19  per second in the upstream direction.
   20         (d)“Communications space” means the lower usable space on
   21  a utility pole which is typically reserved for low-voltage
   22  communications equipment.
   23         (e)“Complex make-ready work” means transfers and work
   24  within the communications space which would be reasonably likely
   25  to cause a service outage or facility damage, including work
   26  such as splicing of any communication attachment or relocation
   27  of existing wireless attachments. The term includes any and all
   28  wireless activities, including those involving mobile, fixed,
   29  and point-to-point wireless communications and wireless service
   30  providers, and any work involving the space above the safety
   31  space as defined in the National Electrical Safety Code.
   32         (f)“Larger order” means a pole attachment application
   33  requesting access to a number of poles greater than the lesser
   34  of 300 poles or 0.5 percent of a municipal electric utility’s
   35  poles, and up to the lesser of 3,000 poles or 5 percent of the
   36  municipal electric utility’s poles. For purposes of determining
   37  whether a request is a larger order, a municipal electric
   38  utility may treat multiple requests from a single new attacher
   39  as one request when the requests are filed within 30 days of one
   40  another.
   41         (g)“Make-ready work” means engineering or construction
   42  activities necessary to make a pole or similar structure
   43  available for a new pole attachment or pole attachment
   44  modification, including, but not limited to, rearrangement,
   45  removal, and replacement of the pole, transfers, and other work
   46  incident thereto.
   47         (h)“Redundant pole” means a utility pole designated for
   48  removal from which the municipal electric utility has removed
   49  its facilities and provided written notice to the broadband
   50  service provider that the provider needs to remove its
   51  facilities.
   52         (i)“Simple make-ready work” means work in the
   53  communications space to accommodate a new pole attachment on a
   54  pole which can be conducted without any reasonable expectation
   55  of a:
   56         1.Service outage or facility damage;
   57         2.Need to splice an existing communications attachment; or
   58         3.Need to relocate an existing wireless attachment.
   59         (j)“Utility pole” means a pole owned or controlled by a
   60  municipal electric utility which is used in whole or in part for
   61  electric distribution.
   62         (3)To promote the deployment of broadband service to all
   63  residents, each municipal electric utility shall:
   64         (a)Charge just, reasonable, and nondiscriminatory rates
   65  for access to any utility pole it owns or operates which do not
   66  discriminate between or among such providers and any other
   67  attaching entity, including any entity affiliated with the
   68  municipal electric utility, regardless of the services
   69  furnished. Except as provided in subsection (4), such rates may
   70  not exceed the rate calculated consistent with 47 U.S.C. 224(d)
   71  and any Federal Communications Commission regulations and
   72  decisions adopted thereunder as such regulations and decisions
   73  existed on July 1, 2021.
   74         (b)Maintain and make available to a broadband provider all
   75  records necessary to calculate the rate it charges to the
   76  provider in accordance with paragraph (a).
   77         (c)Provide broadband providers with access to any utility
   78  pole it owns or operates and adopt just, reasonable, and
   79  nondiscriminatory terms and conditions for such access
   80  consistent with the requirements applicable to investor-owned
   81  utilities under 47 U.S.C. s. 224 and any Federal Communications
   82  Commission regulations and decisions adopted thereunder, as such
   83  regulations and decisions existed on July 1, 2021, except as
   84  otherwise provided in this section and agreed to by the parties.
   85  Notwithstanding the foregoing:
   86         1.If necessary to accommodate a broadband provider’s new
   87  attachment, the municipal electric utility shall rearrange,
   88  expand, replace, or otherwise safely reengineer any utility pole
   89  upon the request of the broadband provider.
   90         2.If the municipal electric utility is required to replace
   91  a utility pole pursuant to subparagraph 1., the municipal
   92  electric utility may require a broadband provider to reimburse
   93  reasonable costs attributable solely to the new attachment.
   94  Broadband providers may not be required to pay for the cost of
   95  utility betterment or for costs attributable to preexisting
   96  noncompliance.
   97         (4)A municipal electric utility may require a broadband
   98  provider to enter into a pole attachment agreement to attach to
   99  a utility pole the municipal electric utility owns or operates,
  100  and the parties shall negotiate such agreements in good faith.
  101         (a)Broadband providers and municipal electric utilities
  102  shall negotiate in good faith to adopt pole attachment
  103  agreements consistent with this section or to amend existing
  104  agreements to ensure that attachments installed after July 1,
  105  2021, are performed consistent with the terms of this section.
  106  The parties must negotiate in good faith for at least 60 days
  107  after receipt of a written request, after which either party may
  108  petition the circuit court to determine rates, terms, and
  109  conditions for the agreements consistent with this section.
  110         (b)A municipal utility may not require a broadband
  111  provider to comply with any utility pole attachment
  112  specifications except as provided in this section.
  113         1.A municipal electric utility may adopt publicly
  114  available, reasonable, and nondiscriminatory safety and
  115  engineering standards for the protection of public health,
  116  safety, or welfare applicable to attachments to the municipal
  117  electric utility’s poles.
  118         2.Safety and engineering standards adopted pursuant to
  119  this section may not exceed the specifications in the National
  120  Electrical Safety Code, applicable fire safety codes, or any
  121  building code or publicly available, reasonable, and
  122  nondiscriminatory municipal electric utility safety and
  123  engineering standards for the protection of public health,
  124  safety, or welfare adopted before the broadband provider filed a
  125  utility pole attachment application.
  126         (5)If a broadband provider does not request to use one
  127  touch, make-ready procedures pursuant to subsection (6), or if
  128  such procedures are unavailable due to the nature of the make
  129  ready work required to accommodate a broadband provider’s
  130  attachment, a municipal electric utility and broadband provider
  131  shall conduct the pole access process as provided under this
  132  subsection.
  133         (a)An application is deemed complete if the municipal
  134  electric utility does not respond within 10 business days or if
  135  the response does not specify any reasons why the application is
  136  incomplete. Preconstruction surveys and engineering must be
  137  completed within 45 days or within 60 days for larger orders.
  138         (b)If a municipal electric utility grants a pole
  139  attachment application that requires make-ready work, the
  140  municipal electric utility shall identify any make-ready work
  141  necessary to accommodate the proposed pole attachment, on a
  142  pole-by-pole basis if requested, along with a cost estimate,
  143  within 15 days after the date of approval of the pole attachment
  144  application. A municipal electric utility may withdraw an
  145  outstanding estimate beginning 15 days after the estimate is
  146  presented except that such time must be tolled during any good
  147  faith negotiation concerning the estimate cost or timing.
  148         (c)Upon receipt of payment of the estimate, a municipal
  149  electric utility shall immediately notify in writing all known
  150  entities with existing attachments which may be affected by the
  151  make-ready work.
  152         (d)1.Except as provided in paragraph (e), make-ready work
  153  must be commenced within 20 business days after the date the
  154  applicant made payment for the make-ready work estimate, and
  155  must be completed in a timely manner, at a reasonable cost, and
  156  as reasonably practicable, but not later than:
  157         a.For applications requesting attachment to the lesser of
  158  300 poles or 0.5 percent of the electric utility’s poles in any
  159  30-day period, 30 days or 90 days for attachments above the
  160  communications space.
  161         b.For larger orders, 75 days or 105 days for attachments
  162  above the safety space.
  163         2.If an application seeks attachment to a number of poles
  164  exceeding a larger order, the parties shall negotiate a
  165  reasonable timeframe for completion of the make-ready work
  166  covered by the application.
  167         (e)A municipal electric utility may deviate from the
  168  timelines set forth in paragraph (d) if the parties otherwise
  169  agree in their pole attachment agreement, or for good and
  170  sufficient cause that renders it infeasible to complete the
  171  make-ready work within the time limits set forth in this
  172  section, including incidents of natural disasters and
  173  emergencies.
  174         (f)If a municipal electric utility or any existing
  175  attachers fail to complete a survey necessary to the review of
  176  an application or to complete make-ready work within the times
  177  specified in this section, a broadband provider may hire a
  178  contractor to perform such survey or make-ready work.
  179         (g) A new attacher shall provide the affected municipal
  180  electric utility and existing attachers with advance notice of
  181  not less than 5 days of the impending make-ready work and within
  182  15 days after completion of make-ready work on a particular
  183  pole. The municipal electric utility and affected existing
  184  attachers shall inspect the make-ready work within 90 days after
  185  receipt of notice.
  186         (h) The new attacher shall notify an affected utility or
  187  existing attacher immediately if make-ready work damages the
  188  equipment of a utility or an existing attacher or causes an
  189  outage that is reasonably likely to interrupt the service of a
  190  utility or an existing attacher. Upon notice or discovery of
  191  damage or noncompliance caused by the new attacher, the utility
  192  or existing attacher may either:
  193         1.Complete any necessary remedial work and bill the new
  194  attacher for the reasonable costs related to fixing the damage;
  195  or
  196         2.Require the new attacher to fix the damage at its
  197  expense immediately following notice from the utility or
  198  existing attacher.
  199         (6)A broadband provider seeking a new pole attachment may
  200  elect to invoke the Florida one-touch, make-ready (FOTMR)
  201  process pursuant to this subsection.
  202         (a)Any FOTMR pole attachment application must identify the
  203  make-ready work to be performed and must state that the make
  204  ready work required for every utility pole in the application
  205  does not require anything more than simple make-ready work. It
  206  is the responsibility of the broadband provider to ensure that
  207  the make-ready work requested in an attachment application is
  208  simple make-ready work and not complex make-ready work.
  209         (b)A municipal electric utility shall review a new FOTMR
  210  pole attachment application for completeness. An application is
  211  deemed complete if the municipal electric utility does not
  212  respond within 10 business days after receipt of the application
  213  or if the response does not specify any reasons why the
  214  application is incomplete.
  215         (c)A municipal electric utility shall review a completed
  216  application requesting FOTMR and respond to the applicant either
  217  granting or denying an application within 15 days after the
  218  municipal electric utility’s receipt of a complete application
  219  or 30 days after for a larger order.
  220         (d)The municipal electric utility or an existing attacher
  221  may object in writing to the applicant’s designation that
  222  certain aspects of the work required is simple make-ready work.
  223  If the municipal electric utility or existing attacher
  224  reasonably objects, then the work is deemed complex make-ready
  225  work and the FOTMR process is not available to the broadband
  226  provider and the application must be processed under the
  227  standard make-ready provisions.
  228         (e)The new attacher is responsible for coordinating all
  229  surveys as part of the FOTMR process and shall use a qualified
  230  contractor as set forth in this section. The new attacher shall
  231  make commercially reasonable efforts to provide at least 3
  232  business days advance notice to the municipal electric utility
  233  and existing attachers to allow them to be present for any
  234  surveys performed in advance of the FOTMR application.
  235         (f)If the new attacher’s application is approved and if it
  236  has provided 15 days prior written notice of the date, time and
  237  nature of the make-ready work to the affected municipal electric
  238  utility and existing attaching entities, the new attacher may
  239  proceed with the make-ready work using a qualified contractor.
  240         (g)The new attacher shall notify any affected municipal
  241  electric utility or existing attaching entity immediately if the
  242  make-ready work performed damages any equipment or facilities of
  243  the municipal electric utility or of an existing attaching
  244  entity. Upon receiving notice from the applicant, the municipal
  245  electric utility or existing attaching entity may each make the
  246  decision to:
  247         1.Complete any necessary remedial work and bill the
  248  applicant for the actual costs incurred related to fixing the
  249  damage or outage; or
  250         2.Require the applicant to fix the damage or outage at its
  251  expense immediately following the notice from the municipal
  252  electric utility or any existing attacher.
  253         (h)The new attacher shall notify the municipal electric
  254  utility and existing attachers within 15 days after the make
  255  ready work is completed on a particular pole, and the municipal
  256  electric utility and existing attachers shall have 90 days after
  257  receipt of the notice to inspect the make-ready work at the new
  258  attacher’s cost. The municipal electric utility and existing
  259  attaching entities may complete any necessary remedial work and
  260  bill the applicant for the actual cost incurred or require the
  261  applicant the fix the damage or code violations at its expense
  262  within 14 days after notice from the pole owner or existing
  263  attaching entity.
  264         (7)(a) A municipal electric utility may make periodic
  265  inspections of a broadband provider’s attachments, using its own
  266  employees or contractors, and such broadband provider shall
  267  reimburse the municipal electric utility for the actual and
  268  reasonable expense of such inspections, but only for the costs
  269  of inspecting the poles on which the broadband provider is found
  270  to be in violation of the National Electrical Safety Code or
  271  publicly available, reasonable, and nondiscriminatory municipal
  272  electric utility safety and engineering standards for the
  273  protection of public health, safety, or welfare permitted by
  274  this section.
  275         (b)No more frequently than once every 5 years, a municipal
  276  electric utility may conduct an audit of a broadband provider’s
  277  attachments, with the reasonable cost of the audit of the
  278  broadband provider’s attachments to be borne by the broadband
  279  provider. If the results of the pole audit show attachments to
  280  poles by the broadband service provider not previously
  281  authorized by the municipal electric utility, such poles must be
  282  added to the next annual rent invoice and the municipal electric
  283  utility may require the broadband service provider to pay up to
  284  5 years’ back rent for attachments to all such poles not
  285  previously authorized as required by the agreement in effect at
  286  the time of the attachment.
  287         (c)The municipal electric utility shall give a broadband
  288  provider reasonable advance written notice of such audits or
  289  inspections, except in those instances where safety
  290  considerations justify the need for such inspection without the
  291  delay of waiting until written notice has been received.
  292         (8)If a municipal electric utility pole owner and any
  293  attacher cannot reach an agreement or have a dispute related to
  294  facilities attached to a redundant pole:
  295         (a)A broadband service provider must remove its pole
  296  attachments from a redundant pole within 120 calendar days after
  297  receipt of written or electronic notice consistent with industry
  298  standards from the pole owner requesting such removal which
  299  notice includes the pole number, physical address, and GIS
  300  coordinates of such pole.
  301         (b)If a broadband service provider fails to remove a pole
  302  attachment pursuant to paragraph (a), except to the extent
  303  excused by an event of force majeure or other good cause, the
  304  pole owner or its agent may transfer or relocate the pole
  305  attachment to a new pole at the noncompliant attaching entity’s
  306  expense or, if no new pole exists because the municipal electric
  307  utility has relocated its facilities underground, remove the
  308  pole attachment and store the attached facility for 60 days.
  309         (c)The broadband service provider shall indemnify, defend,
  310  and hold harmless the pole owner and its directors, officers,
  311  agents, and employees from and against all liability for direct
  312  damage and personal injury caused by the removal, transfer,
  313  sale, or disposal of the pole attachments from a redundant pole
  314  by the pole owner except to the extent of the municipal electric
  315  utility’s negligence or willful misconduct.
  316         (9)Municipal electric utilities may not charge additional
  317  rent or require prior approval or applications for a broadband
  318  provider that overlashes its existing wires on a pole. Municipal
  319  electric utilities may require up to 15 days’ advance notice of
  320  planned overlashing. A party that engages in overlashing is
  321  responsible for its own equipment and shall ensure that it
  322  complies with National Electrical Safety Code and publicly
  323  available, reasonable, and nondiscriminatory municipal electric
  324  utility safety and engineering standards for the protection of
  325  public health, safety, or welfare permitted by this section.
  326         (10)Municipal electric utilities and broadband providers
  327  are responsible for their own costs related to utility poles and
  328  attachments, except as specifically provided herein. Any costs
  329  billed in connection with pole attachments must be commercially
  330  reasonable and nondiscriminatory, and must include sufficient
  331  detail to enable the billed party to verify the accuracy and
  332  reasonableness of the costs. A municipal electric utility that
  333  provides broadband shall impute to itself the costs of providing
  334  such services, and charge any affiliate, subsidiary, or
  335  associate company engaged in the provision of such services, an
  336  equal amount to the pole attachment rate for which such company
  337  would be liable under this section.
  338         (11)A municipal electric utility or broadband provider may
  339  seek any available remedies at law or equity for violations of
  340  this section. In all cases involving this section, and to the
  341  extent not otherwise provided by this section, the court shall
  342  give effect to the provisions and intent of 47 U.S.C. s. 224 and
  343  any Federal Communications Commission rules, regulations, or
  344  decisions adopted thereunder, as such existed on July 1, 2021,
  345  or as authorized by this section.
  347  ================= T I T L E  A M E N D M E N T ================
  348  And the title is amended as follows:
  349         Delete lines 12 - 30
  350  and insert:
  351         records available to broadband providers, provide
  352         access to its utility poles, and establish just and
  353         reasonable terms and conditions for broadband provider
  354         attachments; providing a process for a municipal
  355         electric utility and a broadband provider to enter
  356         into pole attachment agreements; prohibiting municipal
  357         electric utilities from prohibiting a broadband
  358         provider from using certain techniques and equipment
  359         if used in accordance with certain safety standards;
  360         providing an application process and timelines for
  361         pole access between a municipal electric utility and a
  362         broadband provider; authorizing a broadband provider
  363         seeking a new pole attachment to invoke the Florida
  364         one-touch, make-ready process; providing requirements
  365         for such process; authorizing a municipal electric
  366         utility to make periodic inspections of a broadband
  367         provider’s attachments; requiring the broadband
  368         provider to reimburse the municipal electric utility
  369         for certain costs relating to such inspections;
  370         authorizing a municipal electric utility to conduct
  371         audits of such attachments according to a specified
  372         timeframe; requiring advanced written notice of such
  373         inspections or audits; providing for the removal of
  374         pole attachments within a specified timeframe upon
  375         unresolved disputes; prohibiting a municipal electric
  376         utility from charging additional rent or requiring
  377         prior approval or applications for overlashes;
  378         requiring any billed costs to be commercially
  379         reasonable, nondiscriminatory, and sufficiently
  380         detailed; authorizing