Florida Senate - 2021                                    SB 1592
       By Senator Burgess
       20-00948C-21                                          20211592__
    1                        A bill to be entitled                      
    2         An act relating to broadband Internet infrastructure;
    3         providing a short title; amending s. 212.08, F.S.;
    4         exempting the purchase, lease, or sale of certain
    5         equipment used by a provider of communications
    6         services or a provider of Internet access services in
    7         this state from the sales and use tax; defining terms;
    8         creating s. 364.0137, F.S.; providing legislative
    9         findings; defining terms; requiring municipal electric
   10         utilities to ensure that their broadband provider
   11         rates and fees meet certain requirements, make certain
   12         records available to broadband providers, and
   13         establish just and reasonable terms and conditions for
   14         broadband provider attachments; prohibiting municipal
   15         electric utilities from prohibiting a broadband
   16         provider from using certain techniques and equipment
   17         if used in accordance with certain safety standards;
   18         requiring any required pole replacement by a municipal
   19         electric utility to be completed within a specified
   20         timeframe; prohibiting municipal electric utilities
   21         from requiring a broadband provider to comply with
   22         attachment specifications that exceed specified
   23         established safety levels; providing construction;
   24         authorizing municipal electric utilities or broadband
   25         providers to negotiate agreements or renegotiate
   26         existing agreements and to petition the court after a
   27         specified timeframe if unable to reach an agreement;
   28         requiring the court to make a determination within a
   29         specified timeframe; specifying that such
   30         determination applies retroactively; authorizing
   31         municipal electric utilities and broadband providers
   32         to seek any available remedies; providing an effective
   33         date.
   35         WHEREAS, although this state is a national leader in
   36  private sector broadband investment, including billions of
   37  dollars invested by existing service providers, estimates show
   38  that as many as 804,000 residents lack access to the services,
   39  particularly in rural areas where the cost to deploy facilities
   40  is significantly higher than in more densely populated areas,
   41  and
   42         WHEREAS, the lack of advanced communication capabilities,
   43  broadband facilities, and services in certain areas deprives
   44  residents of access to opportunities, and
   45         WHEREAS, the Legislature finds that it is in the public
   46  interest of this state to encourage private-sector investment in
   47  broadband deployment and upgrades, encourage greater
   48  participation and access for all residents, and remove
   49  regulatory and economic barriers to such investment, and
   50         WHEREAS, the Legislature finds that it is in the public
   51  interest of this state to encourage and facilitate the
   52  development of and investment in broadband facilities to advance
   53  Florida’s economic competitiveness, create job opportunities,
   54  enhance health care, and enhance educational advancement, and
   55         WHEREAS, the Legislature finds that reasonable rates,
   56  terms, and conditions for access and use of municipal utility
   57  poles by broadband service providers are essential for the
   58  deployment, upgrade, and maintenance of broadband service, and
   59         WHEREAS, it is critical that such access rates, terms, and
   60  conditions be reasonable and fully compensatory, as approved by
   61  the federal pole attachment regime imposed by the Communications
   62  Act of 1934, as amended, 47 U.S.C. s. 224, and the rules and
   63  regulations of the Federal Communications Commission governing
   64  utilities whose pole attachments are regulated under federal
   65  law, NOW, THEREFORE,
   67  Be It Enacted by the Legislature of the State of Florida:
   69         Section 1. This act may be cited as the “Florida Broadband
   70  Deployment Act of 2021.”
   71         Section 2. Paragraph (ppp) is added to subsection (7) of
   72  section 212.08, Florida Statutes, to read:
   73         212.08 Sales, rental, use, consumption, distribution, and
   74  storage tax; specified exemptions.—The sale at retail, the
   75  rental, the use, the consumption, the distribution, and the
   76  storage to be used or consumed in this state of the following
   77  are hereby specifically exempt from the tax imposed by this
   78  chapter.
   79         (7) MISCELLANEOUS EXEMPTIONS.—Exemptions provided to any
   80  entity by this chapter do not inure to any transaction that is
   81  otherwise taxable under this chapter when payment is made by a
   82  representative or employee of the entity by any means,
   83  including, but not limited to, cash, check, or credit card, even
   84  when that representative or employee is subsequently reimbursed
   85  by the entity. In addition, exemptions provided to any entity by
   86  this subsection do not inure to any transaction that is
   87  otherwise taxable under this chapter unless the entity has
   88  obtained a sales tax exemption certificate from the department
   89  or the entity obtains or provides other documentation as
   90  required by the department. Eligible purchases or leases made
   91  with such a certificate must be in strict compliance with this
   92  subsection and departmental rules, and any person who makes an
   93  exempt purchase with a certificate that is not in strict
   94  compliance with this subsection and the rules is liable for and
   95  shall pay the tax. The department may adopt rules to administer
   96  this subsection.
   97         (ppp) Equipment purchased, leased, or sold in this state
   98  for use by a provider of communications services or a provider
   99  of Internet access services.
  100         1.The purchase, lease, or sale of equipment used in the
  101  business of providing communications services or Internet access
  102  services, in whole or in part, by a provider of communications
  103  services or Internet access services is exempt from the tax
  104  imposed by this chapter.
  105         2.As used in this paragraph, the term:
  106         a.“Equipment used in the business of providing
  107  communications services or Internet access services” means all
  108  equipment, machinery, software, or other infrastructure that is:
  109         (I)Classified as central office equipment, station
  110  equipment or apparatus, station connection, wiring, or large
  111  private branch exchanges according to the uniform system of
  112  accounts which was adopted and prescribed for the provider by
  113  the Public Service Commission; or
  114         (II)Part of a national, regional, or local headend or
  115  similar facility operated by a provider of communications
  116  services or Internet access services.
  117         b.“Communications services” has the same meaning as in s.
  118  202.11(1).
  119         c.Internet access service” has the same meaning as
  120  defined in s. 202.11(6).
  121         d.Provider of communications services or Internet access
  122  services” means a dealer as defined in s. 202.11(2) and any
  123  member of an affiliated group as defined in s. 202.37(1)(c)2.
  124  with such dealer.
  125         Section 3. Section 364.0137, Florida Statutes, is created
  126  to read:
  127         364.0137Broadband service infrastructure.—
  128         (1)The Legislature finds that just, reasonable, and
  129  nondiscriminatory rates, terms, and conditions for the access
  130  and use of municipal electric utility poles by broadband service
  131  providers is essential to deploy, upgrade, and maintain
  132  broadband service to residents of this state. It is critical
  133  that municipal electric utility pole access and use rates are
  134  just, reasonable, nondiscriminatory, and fully compensatory,
  135  which may be achieved under the federal framework applicable to
  136  utility poles owned and operated by investor-owned utilities.
  137  The terms and conditions associated with the access and use of
  138  utility poles must be consistent with 47 U.S.C. s. 224, the
  139  Communications Act of 1934, as amended, and the regulations of
  140  the Federal Communications Commission as those regulations
  141  existed on July 1, 2021.
  142         (2)As used in this section, the term:
  143         (a)“Attachment” means any attachment to a utility pole or
  144  structure, duct, conduit, or right-of-way owned or controlled by
  145  a municipal electric utility.
  146         (b)“Broadband provider” means a person who provides
  147  broadband service and includes a person who provides or offers
  148  additional services to the public in addition to broadband
  149  service.
  150         (c)“Broadband service” means a service that provides high
  151  speed access to the Internet at a rate of at least 25 megabits
  152  per second in the downstream direction and at least 3 megabits
  153  per second in the upstream direction.
  154         (d)“Utility pole” means a pole owned or controlled by a
  155  municipal electric utility which is used in whole or in part for
  156  electric distribution.
  157         (3)To promote the deployment of broadband service to all
  158  residents, each municipal electric utility:
  159         (a)Shall provide broadband providers with access to any
  160  utility pole it owns or operates and adopt rates, terms, and
  161  conditions for such access which are consistent with 47 U.S.C.
  162  s. 224 and any Federal Communications Commission regulations and
  163  decisions adopted thereunder as such regulations and decisions
  164  existed on July 1, 2021. Such rates, terms, and conditions must
  165  be nondiscriminatory, just, and reasonable and may not favor a
  166  pole owner or an affiliate of the pole owner.
  167         (b)1.Shall ensure that any rate or fee that the municipal
  168  electric utility charges to a broadband provider for an
  169  attachment to a utility pole does not do any of the following:
  170         a.Discriminate between or among such providers and any
  171  other attaching entity, regardless of the services furnished.
  172         b.Exceed the annual recurring rate calculated in
  173  accordance with the cable service rate formula established by 47
  174  U.S.C. s. 224(d) or any Federal Communications Commission rule,
  175  regulation, or decision adopted thereunder, as such existed on
  176  July 1, 2021.
  177         2.Shall maintain and make available to a broadband
  178  provider all records necessary to calculate the rate it charges
  179  to the provider. The records must include all of the following:
  180         a.All costs associated with utility poles; any
  181  improvements or reinforcements thereto; and any appurtenances,
  182  including costs associated with storm hardening efforts, which
  183  must be identified with particularity.
  184         b.Identification of the actual height, usable space, and
  185  appurtenances associated with each utility pole.
  186         c.Information regarding any ancillary utility poles and
  187  the costs associated with such poles, which are separately
  188  identifiable from the principal utility poles they support.
  189         d.To the extent the accumulated depreciation for a utility
  190  pole which is used to calculate the rate is based on records
  191  specific to pole plant rather than based on proration of
  192  accumulated depreciation tracked at a higher aggregated plant
  193  amount, sufficiently detailed data to support the pole-specific
  194  figure.
  195         (c)Shall establish just and reasonable terms and
  196  conditions for a broadband provider attachment which do not
  197  discriminate between or among providers or any other attaching
  198  entity and which are consistent with 47 U.S.C. s. 224 and any
  199  Federal Communications Commission rule, regulation, or decision
  200  adopted thereunder, as such existed on July 1, 2021, except
  201  that:
  202         1.If necessary to accommodate a broadband provider’s new
  203  attachment, the municipal electric utility shall rearrange,
  204  expand, replace, or otherwise safely reengineer any utility pole
  205  upon the request of the broadband provider. If the municipal
  206  electric utility is required to replace a utility pole pursuant
  207  to this subparagraph, the municipal electric utility may not
  208  require a broadband provider to reimburse any costs associated
  209  with such pole replacement beyond the recovery of its actual and
  210  reasonable costs of advancing the retirement of the existing
  211  utility pole. Such costs shall be measured by all of the
  212  following:
  213         a.The net book value of the existing utility pole;
  214         b.The incremental cost, if any, of installing a utility
  215  pole with greater capacity than the utility pole the municipal
  216  electric utility would have installed in the normal course of
  217  its operations;
  218         c.Any other incremental costs proved by the municipal
  219  electric utility, provided that such incremental costs do not
  220  include any costs associated with a utility pole the municipal
  221  electric utility would have installed at the same location;
  222         2.The municipal electric utility may not prohibit the
  223  broadband provider from using boxing techniques, extension arms,
  224  attachments below existing attachments where space is
  225  unavailable above existing attachments, temporary attachments,
  226  or other methods or equipment, provided that such use complies
  227  with the National Electric Safety Code or other applicable
  228  safety codes; and
  229         3.With respect to a utility pole replacement, the
  230  municipal electric utility must complete such pole replacement
  231  and any other work necessary to accommodate the broadband
  232  provider’s attachment to the replaced pole within 90 days after
  233  receiving a complete attachment request from a broadband
  234  provider.
  235         (d)May not require a broadband provider to comply with any
  236  utility pole attachment specifications that exceed the
  237  specifications in the National Electric Safety Code, applicable
  238  fire safety codes, or any building code or similar code of
  239  general applicability for the protection of public health,
  240  safety, or welfare which was adopted by the applicable local
  241  governmental jurisdiction before the broadband provider filed a
  242  utility pole attachment application. However, this section may
  243  not be construed to expand the power of any local governmental
  244  jurisdiction.
  245         (4)A municipal electric utility or broadband provider may
  246  submit a written request to negotiate agreements or to amend,
  247  modify, or renew any existing agreement addressing attachments
  248  by the broadband provider to conform such agreements to this
  249  section. The parties must negotiate in good faith for at least
  250  60 days after the written request, after which either party may
  251  petition the circuit court to determine rates, terms, and
  252  conditions for the agreements consistent with this section. The
  253  court shall make a determination within 180 days after the
  254  filing of the petition for that determination. The court’s
  255  determination applies retroactively to attachments between the
  256  date of the written request to negotiate and the date of the
  257  commission’s determination, and to the continuing terms of all
  258  existing attachments that were installed before the written
  259  request. Between the date of the written request to negotiate
  260  and the date of the court’s determination:
  261         (a)The terms and conditions of any existing agreement
  262  addressing such attachments apply, subject to true-up, to put
  263  the parties in the positions in which they would have been had
  264  the court’s determination been in effect on the date of the
  265  written request to negotiate; and
  266         (b)In the absence of such existing agreement, unless the
  267  parties agree otherwise, the court, within 30 days after the
  268  petition for a determination, must establish interim rates,
  269  terms, and conditions that will apply, subject to true-up, to
  270  put the parties in the positions in which they would have been
  271  had the court’s determination been in effect on the date of the
  272  written request to negotiate.
  273         (5)A municipal electric utility or broadband provider may
  274  seek any available remedies at law or equity for violations of
  275  this section. In all cases involving this section, and to the
  276  extent not otherwise provided by this section, the court shall
  277  give effect to the provisions and intent of 47 U.S.C. s. 224 and
  278  any Federal Communications Commission rules, regulations, or
  279  decisions adopted thereunder, as such existed on July 1, 2021.
  280         Section 4. This act shall take effect July 1, 2021.