Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1944
       
       
       
       
       
       
                                Ì820550uÎ820550                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/20/2021           .                                
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       The Committee on Appropriations (Albritton) recommended the
       following:
       
    1         Senate Substitute for Amendment (529128) (with title
    2  amendment)
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Paragraph (g) is added to subsection (13) of
    7  section 120.80, Florida Statutes, to read:
    8         120.80 Exceptions and special requirements; agencies.—
    9         (13) FLORIDA PUBLIC SERVICE COMMISSION.—
   10         (g) Rules adopted by the Florida Public Service Commission
   11  to implement ss. 366.04(8) and (9) and 366.97 are not subject to
   12  s. 120.541.
   13         Section 2. Subsections (4) through (9) are added to section
   14  366.02, Florida Statutes, to read:
   15         366.02 Definitions.—As used in this chapter:
   16         (4) “Attaching entity” means a person that is a local
   17  exchange carrier, a public utility, a communications services
   18  provider, a broadband service provider, or a cable television
   19  operator that owns or controls pole attachments.
   20         (5)“Communications services” has the same meaning as in s.
   21  202.11(1).
   22         (6)“Pole” means a pole used for electric distribution
   23  service, streetlights, communications services, local exchange
   24  services, or cable television services which is owned in whole
   25  or in part by a pole owner. The term does not include a pole
   26  used solely to support wireless communications services
   27  facilities.
   28         (7)“Pole attachment” means any attachment by a public
   29  utility, local exchange carrier communications services
   30  provider, broadband provider, or cable television operator to a
   31  pole, duct, conduit, or right-of-way owned or controlled by a
   32  pole owner.
   33         (8) “Pole owner” means a local exchange carrier, a public
   34  utility, a communications services provider, or a cable
   35  television operator that owns a pole.
   36         (9) “Redundant pole” means a pole owned or controlled by a
   37  pole owner which is:
   38         (a)Within 50 feet of a new pole that is intended to
   39  replace the old pole from which some or all of the pole
   40  attachments have not been removed and transferred to the new
   41  pole;
   42         (b)Left standing after the pole owner has relocated its
   43  facilities to underground but on which pole attachments of other
   44  attaching entities remain; or
   45         (c)Left standing after a pole owner’s attachments have
   46  been removed from that route or location to accommodate a new
   47  route or design for the delivery of service.
   48         Section 3. Subsections (8) and (9) are added to section
   49  366.04, Florida Statutes, to read:
   50         366.04 Jurisdiction of commission.—
   51         (8)(a)The commission shall regulate and enforce rates,
   52  charges, terms, and conditions of pole attachments, including
   53  the types of attachments regulated under 47 U.S.C. s. 224(a)(4),
   54  attachments to streetlight fixtures, attachments to poles owned
   55  by a public utility, or attachments to poles owned by a
   56  communications services provider, to ensure that such rates,
   57  charges, terms, and conditions are just and reasonable. The
   58  commission’s authority under this subsection includes, but is
   59  not limited to, the state regulatory authority referenced in 47
   60  U.S.C. s. 224(c).
   61         (b) In developing such rules, the commission shall consider
   62  the interests of the subscribers and users of the services
   63  offered through such pole attachments, as well as the interests
   64  of the consumers of any pole owner providing such attachments.
   65         (c) It is the intent of the Legislature to encourage
   66  parties to enter into voluntary pole attachment agreements, and
   67  this subsection may not be construed to prevent parties from
   68  voluntarily entering into pole attachment agreements without
   69  commission approval.
   70         (d) A party’s right to nondiscriminatory access to a pole
   71  under this subsection is identical to the rights afforded under
   72  47 U.S.C. s. 224(f)(1). A pole owner may deny access to its
   73  poles on a nondiscriminatory basis when there is insufficient
   74  capacity, for reasons of safety and reliability, and when
   75  required by generally applicable engineering purposes. A pole
   76  owner’s evaluation of capacity, safety, reliability, and
   77  engineering requirements must consider relevant construction and
   78  reliability standards approved by the commission.
   79         (e) The commission shall hear and resolve complaints
   80  concerning rates, charges, terms, conditions, voluntary
   81  agreements, or any denial of access relative to pole attachments
   82  with regard to the types of attachments regulated under 47
   83  U.S.C. s. 224, attachments to streetlight fixtures, or
   84  attachments owned by a communications services provider. Federal
   85  Communications Commission precedent is not binding upon the
   86  commission in the exercise of its authority under this
   87  subsection. When taking action upon such complaints, the
   88  commission shall establish just and reasonable cost-based rates,
   89  terms, and conditions for pole attachments and shall apply the
   90  decisions and orders of the Federal Communications Commission
   91  and any appellate court decisions reviewing an order of the
   92  Federal Communications Commission regarding pole attachment
   93  rates, terms, or conditions in determining just and reasonable
   94  pole attachment rates, terms, and conditions unless a pole owner
   95  or attaching entity establishes by competent substantial
   96  evidence pursuant to proceedings conducted pursuant to ss.
   97  120.569 and 120.57 that an alternative cost of service-based
   98  pole attachment rate is appropriate and in the public interest.
   99         (f)In the administration and implementation of this
  100  subsection, the commission shall authorize any petitioning pole
  101  owner or attaching entity to participate as an intervenor with
  102  full party rights under chapter 120 in the first five formal
  103  administrative proceedings conducted to determine pole
  104  attachment rates under this section. These initial five
  105  proceedings are intended to provide commission precedent on the
  106  establishment of pole attachment rates by the commission and
  107  help guide negotiations toward voluntary pole attachment
  108  agreements. After the fifth such formal administrative
  109  proceeding is concluded by final order, parties to subsequent
  110  pole attachment rate proceedings are limited to the specific
  111  pole owner and pole attaching entities involved in and directly
  112  affected by the specific pole attachment rate.
  113         (g)The commission shall adopt procedural rules by January
  114  1, 2022, to administer and implement this subsection and, upon
  115  adoption of such rules, shall provide its certification to the
  116  Federal Communications Commission pursuant to 47 U.S.C. s.
  117  224(c)(2).
  118         (9)(a) The commission shall regulate the safety, vegetation
  119  management, repair, replacement, maintenance, relocation,
  120  emergency response, and storm restoration requirements for poles
  121  of communication services providers. This subsection does not
  122  apply to a communications services provider that owns no poles.
  123         (b) The commission shall adopt rules by April 1, 2022, to
  124  administer and implement this subsection, including, but not
  125  limited to:
  126         1.Mandatory pole inspections, including repair or
  127  replacement; vegetation management requirements for poles owned
  128  by providers of communications services; and
  129         2.Monetary penalties to be imposed upon any communications
  130  services provider that fails to comply with any such rule of the
  131  commission. Monetary penalties imposed by the commission must be
  132  consistent with s. 366.095.
  133         (c)The commission may access the books and records of
  134  communications services providers to the limited extent
  135  necessary to perform its functions and to exercise its authority
  136  under subsection (8), this subsection, and s. 366.97(4). Upon
  137  request by a communications services provider, any records that
  138  are shown and found to be proprietary confidential business
  139  information that is confidential or exempt from disclosure under
  140  s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution
  141  which are received by the commission under this paragraph shall
  142  retain their confidential or exempt status when held by the
  143  commission.
  144         Section 4. Section 366.97, Florida Statutes, is created to
  145  read:
  146         366.97Redundant poles; transfer of ownership.—
  147         (1)The commission by rule shall determine a process by
  148  which pole owners shall provide at least 180 calendar days’
  149  electronic or written advance notice to affected attaching
  150  entities of major hardening projects the purpose of which is to
  151  replace poles to ensure the poles meet extreme wind loading
  152  requirements. The advance hardening project notice must include:
  153         (a)The scope of the major hardening project, to the extent
  154  determined, the locations of the affected poles, the expected
  155  start date, and the expected completion date of the major
  156  hardening project; and
  157         (b)The date, time, and location of a field meeting for the
  158  pole owner and attaching entities to review and discuss the
  159  planned major hardening project details, including the types of
  160  replacement poles to be used. The field meeting must occur no
  161  sooner than 15 calendar days after the date of the notice and no
  162  later than 60 calendar days after the notice and, at a minimum,
  163  must include sufficient information to enable the attaching
  164  entity to locate the affected poles and identify the owner of
  165  any facilities attached to the poles.
  166         (2)(a) An attaching entity must remove its pole attachments
  167  from a redundant pole within 180 calendar days after receipt of
  168  an electronic or a written notice from the pole owner requesting
  169  such removal. The commission shall determine by rule the
  170  sufficiency of, and requirements for, such removal notice and
  171  may consider the use of a joint use notification software
  172  program to accomplish such removal notice.
  173         (b)If an attaching entity fails to remove a pole
  174  attachment pursuant to paragraph (a), except to the extent
  175  excused by an event of force majeure or other good cause as
  176  determined by the commission, the pole owner or its agent may
  177  transfer or relocate the pole attachment to the new pole at the
  178  noncompliant attaching entity’s expense. This subsection does
  179  not apply to an electric utility’s pole attachments. An
  180  attaching entity shall submit payment to the pole owner within
  181  60 days after receipt of the pole owner’s invoice. A pole owner
  182  may seek to enforce its right to payment under this paragraph in
  183  circuit court and is entitled to prejudgment interest at the
  184  prevailing statutory rate and reasonable attorney fees and court
  185  costs. Upon receipt by the pole owner of written notice that
  186  complies with the commission rule, the noncompliant attaching
  187  entity shall indemnify, defend, and hold harmless the pole owner
  188  and its directors, officers, agents, and employees from and
  189  against all liability, except to the extent of any finding of
  190  negligence or willful misconduct, including attorney fees and
  191  litigation costs, arising in connection with the transfer of the
  192  pole attachment from a redundant pole to a new pole by the pole
  193  owner.
  194         (c)If a pole attachment is no longer in use by a
  195  noncompliant attaching entity, the pole owner or its agent may
  196  remove the pole attachment at the noncompliant attaching
  197  entity’s expense and may sell or dispose of the pole attachment,
  198  except to the extent the attaching entity’s noncompliance is
  199  excused by an event of force majeure or other good cause as
  200  determined by the commission. An attaching entity shall submit
  201  payment to the pole owner within 60 days after receipt of the
  202  pole owner’s invoice. A pole owner may seek to enforce its right
  203  to payment under this paragraph in circuit court and is entitled
  204  to prejudgment interest at the prevailing statutory rate and
  205  reasonable attorney fees and court costs. Upon receipt by the
  206  pole owner of written notice that complies with the commission
  207  rule, the noncompliant attaching entity shall indemnify, defend,
  208  and hold harmless the pole owner and its directors, officers,
  209  agents, and employees from and against all liability, except to
  210  the extent of any finding of negligence or willful misconduct,
  211  including attorney fees and litigation costs, arising in
  212  connection with the removal, transfer, sale, or disposal of the
  213  pole attachments from a redundant pole by the pole owner.
  214         (d)The commission may require by rule that an attaching
  215  entity post security instruments in favor of pole owners in
  216  amounts reasonably sufficient to cover the cost of the removal,
  217  transfer, sale, or disposal of pole attachments. The rules do
  218  not apply to existing agreements between the pole owners and the
  219  attaching entity if the agreement expressly provides for, or
  220  disclaims, security requirements.
  221         (3) Upon petition by a pole owner, the commission may issue
  222  orders requiring the removal or transfer of pole attachments by
  223  noncompliant attaching entities.
  224         (4This section may not be construed to do any of the
  225  following:
  226         (a)Prevent a party at any time from entering into a
  227  voluntary agreement authorizing a pole owner to remove an
  228  attaching entity’s pole attachment. It is the intent of the
  229  Legislature to encourage parties to enter into such voluntary
  230  agreements without commission approval.
  231         (b)Impair the contract rights of a party to a valid pole
  232  attachment agreement in existence before the effective date of
  233  this act.
  234         (5) The commission shall adopt rules by April 1, 2022, to
  235  implement this section, including rules providing for the timely
  236  and coordinated removal of all pole attachments from redundant
  237  poles and establishing monetary penalties to be imposed against
  238  any entity in violation of this section.
  239         Section 5. The Division of Law Revision is directed to
  240  replace the phrase “the effective date of this act” wherever it
  241  occurs in this act with the date this act becomes a law.
  242         Section 6. This act shall take effect upon becoming a law.
  243  
  244  ================= T I T L E  A M E N D M E N T ================
  245  And the title is amended as follows:
  246         Delete everything before the enacting clause
  247  and insert:
  248                        A bill to be entitled                      
  249         An act relating to utility and communications poles;
  250         amending s. 120.80, F.S.; exempting certain rules
  251         adopted by the Public Service Commission from
  252         legislative ratification requirements; amending s.
  253         366.02, F.S.; defining terms; amending s. 366.04,
  254         F.S.; requiring the commission to regulate and enforce
  255         rates, charges, terms, and conditions for pole
  256         attachments under certain circumstances; providing
  257         requirements for such rules; providing construction;
  258         providing situations under which a pole owner may deny
  259         access to the owner’s pole on a nondiscriminatory
  260         basis; requiring the commission to hear and resolve
  261         complaints concerning rates, charges, terms,
  262         conditions, voluntary agreements, and denial of access
  263         relative to pole attachments; requiring the commission
  264         to establish cost-based rates and charges for pole
  265         attachments and apply certain decisions and orders of
  266         the Federal Communications Commission; requiring the
  267         commission to authorize certain parties to participate
  268         as an intervenor in a specified number of
  269         administrative proceedings; requiring the commission
  270         to adopt rules by a specified date and provide
  271         certification to the Federal Communications Commission
  272         upon such adoption; requiring the commission to
  273         regulate the safety, vegetation management, repair,
  274         replacement, maintenance, relocation, emergency
  275         response, and storm restoration requirements for poles
  276         of communications services providers; providing an
  277         exception; requiring the commission to adopt rules,
  278         including monetary penalties, by a specified date;
  279         authorizing the commission to access the books and
  280         records of communications services providers for
  281         specified purposes; providing that such information
  282         that contains proprietary confidential business
  283         information retains its confidential or exempt status
  284         when held by the commission; creating s. 366.97, F.S.;
  285         requiring the commission by rule to create a process
  286         requiring advance hardening project notice; requiring
  287         attaching entities to remove pole attachments from
  288         redundant poles within a specified timeframe after
  289         receipt of electronic or written notice from the pole
  290         owner; requiring the commission to provide the form
  291         and requirements for such notice by rule; authorizing
  292         a pole owner or its agent to transfer or relocate pole
  293         attachments of an attaching entity at the entity’s
  294         expense under certain circumstances; providing an
  295         exception; requiring attaching entities to submit
  296         payment within a specified timeframe; authorizing pole
  297         owners to seek enforcement of such payment; requiring
  298         that the pole owner and its directors, officers,
  299         agents, and employees be held harmless under certain
  300         circumstances for such actions; authorizing a pole
  301         owner to remove and sell or dispose of certain
  302         abandoned pole attachments; authorizing the commission
  303         to require attaching entities to post certain security
  304         instruments by rule; authorizing the commission to
  305         issue orders for the removal or transfer of pole
  306         attachments by noncompliant attaching entities upon
  307         petition by a pole owner; providing construction;
  308         requiring the commission to adopt rules by a specified
  309         date; providing a directive to the Division of Law
  310         Revision; providing an effective date.