Florida Senate - 2021 SB 1944
By Senator Albritton
26-01453-21 20211944__
1 A bill to be entitled
2 An act relating to utility and communications poles;
3 amending s. 366.02, F.S.; defining terms; amending s.
4 366.04, F.S.; requiring the Public Service Commission
5 to regulate and enforce rates, charges, terms, and
6 conditions for pole attachments under certain
7 circumstances; providing requirements for such rules;
8 providing construction; providing situations under
9 which a pole owner may deny access to the owner’s pole
10 on a nondiscriminatory basis; authorizing the
11 commission to hear and resolve complaints concerning
12 rates, charges, terms, conditions, voluntary
13 agreements, and denial of access relative to pole
14 attachments; requiring the commission, at the request
15 of a party, to assume jurisdiction over certain
16 complaints before the Federal Communications
17 Commission; requiring the commission to adopt rules by
18 a specified date; requiring the commission to regulate
19 the safety, vegetation management, repair,
20 replacement, maintenance, relocation, emergency
21 response, and storm restoration requirements for
22 certain plants and equipment of communications
23 services providers; requiring the commission to adopt
24 rules, including monetary penalties, by a specified
25 date; creating s. 366.97, F.S.; providing legislative
26 findings; requiring attaching entities to remove pole
27 attachments from redundant poles within a specified
28 timeframe after receipt of a written notice from the
29 pole owner; requiring the commission to provide the
30 form and requirements for such notice; authorizing a
31 pole owner or its agent to transfer or relocate pole
32 attachments of an attaching entity at the entity’s
33 expense under certain circumstances; providing an
34 exception; authorizing a pole owner to remove and sell
35 or dispose of certain abandoned pole attachments;
36 requiring that the pole owner and its directors,
37 officers, agents, and employees be held harmless under
38 certain circumstances for such actions; authorizing
39 the commission to require attaching entities to post
40 certain security instruments by rule; authorizing
41 certain pole owners to transfer legal title of a
42 redundant pole to an attaching entity that has not
43 removed a pole attachment within a specified
44 timeframe; providing for such transfer of title;
45 providing for the transfer of obligation,
46 responsibility, and liability of a pole to the new
47 owner upon such a transfer of title; requiring the
48 commission to impose monetary penalties for
49 violations; requiring the commission to provide grants
50 to install and upgrade broadband infrastructure in
51 this state from any monetary penalty collected;
52 providing construction; requiring the commission to
53 adopt rules by a specified date; providing a directive
54 to the Division of Law Revision; providing an
55 effective date.
56
57 Be It Enacted by the Legislature of the State of Florida:
58
59 Section 1. Subsection (4) through (9) are added to section
60 366.02, Florida Statutes, to read:
61 366.02 Definitions.—As used in this chapter:
62 (4) “Attaching entity” means a person that is a local
63 exchange carrier, a public utility or an electric utility, a
64 communications services provider, or a cable television operator
65 who owns or controls pole attachments.
66 (5) “Communications services” has the same meaning as in s.
67 202.11.
68 (6) “Pole” means a pole, duct, conduit, or right-of-way
69 that is used for wire or wireless communications or electricity
70 distribution and that is owned in whole or in part by a pole
71 owner, or a streetlight fixture that is owned in whole or in
72 part by a public utility.
73 (7) “Pole attachments” means local exchange carrier,
74 electric, communications services, or cable television
75 facilities attached to a pole by an entity other than the pole
76 owner.
77 (8) “Pole owner” means a local exchange carrier, a public
78 utility or an electric utility, a communications services
79 provider, a cable television operator, or other public utility
80 which owns a pole used in whole or in part, for electrical
81 purposes or for any wire or wireless communications.
82 (9) “Redundant pole” means a pole owned or controlled by a
83 pole owner which is:
84 1. Within 50 feet of a new pole which is intended to
85 replace the old pole from which some or all of the pole
86 attachments have not been removed and transferred to the new
87 pole;
88 2. Left standing after the pole owner has relocated its
89 facilities to underground but on which pole attachments of other
90 attaching entities remain; or
91 3. Left standing after a pole owner’s attachments have been
92 removed from that route or location to accommodate a new route
93 or design for the delivery service.
94 Section 2. Subsections (8) and (9) are added to section
95 366.04, Florida Statutes, to read:
96 366.04 Jurisdiction of commission.—
97 (8)(a) The commission shall regulate and enforce rates,
98 charges, terms, and conditions for pole attachments in
99 situations in which a pole owner is unable to reach an agreement
100 with a party seeking pole attachments, including the types of
101 attachments regulated under 47 U.S.C. s. 224(a)(4), attachments
102 to streetlight fixtures, or attachments to poles owned by a
103 communications services provider, to ensure that such rates,
104 charges, terms, and conditions are just and reasonable. The
105 commission’s authority under this subsection includes, but is
106 not limited to, the state regulatory authority referenced in 47
107 U.S.C. s. 224(c).
108 (b) In developing the rules, the commission shall consider
109 the interests of the subscribers and users of the services
110 offered through such pole attachments, as well as the interests
111 of the consumers of any pole owner providing such attachments.
112 (c) It is the intent of the Legislature to encourage
113 parties to enter into voluntary pole attachment agreements, and
114 this subsection may not be construed to prevent parties from
115 voluntarily entering into pole attachment agreements without
116 commission approval.
117 (d) A party’s right to nondiscriminatory access to a pole
118 under this subsection is identical to the rights afforded under
119 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its
120 poles on a nondiscriminatory basis when there is insufficient
121 capacity, for reasons of safety and reliability, and when
122 required by generally applicable engineering purposes. A pole
123 owner’s evaluation of capacity, safety, reliability, and
124 engineering requirements must consider relevant construction and
125 reliability standards approved by the commission and may include
126 an evaluation of the financial and performance-related
127 capabilities of the entity requesting attachment.
128 (e) The commission may hear and resolve complaints
129 concerning rates, charges, terms, conditions, voluntary
130 agreements, or any denial of access relative to pole attachments
131 with regard to the types of attachments regulated under 47
132 U.S.C. s. 224, attachments to streetlight fixtures, or
133 attachments owned by a communications services provider. Federal
134 Communications Commission precedent is not binding upon the
135 commission in the exercise of its authority under this
136 subsection.
137 (f) Upon commencement of its authority under this
138 subsection, the commission, upon the request of a party to a
139 complaint proceeding pending before the Federal Communications
140 Commission, shall assume jurisdiction over the matter if it is
141 not yet subject to a final order of the Federal Communications
142 Commission at the time of the request.
143 (g) The commission shall adopt rules by October 1, 2021, to
144 administer and implement this subsection, including one or more
145 appropriate formulae for apportioning costs.
146 (9)(a) The commission shall regulate the safety, vegetation
147 management, repair, replacement, maintenance, relocation,
148 emergency response, and storm restoration requirements for
149 poles, conduits, ducts, pipes, pole attachments, wires, cables,
150 and related plant and equipment of communication services
151 providers. The commission shall require communications services
152 providers to establish storm reserve funds for the repair and
153 replacement of facilities after natural disasters.
154 (b) The commission shall adopt rules by October 1, 2021, to
155 administer and implement this subsection, including, but not
156 limited to:
157 1. Mandatory pole inspections, including repair or
158 replacement; vegetation management requirements for poles owned
159 by providers of communications services; the establishment of
160 storm reserve funds; and the sequential and timely removal of
161 pole attachments; and
162 2. Monetary penalties to be imposed upon any communication
163 services provider that fails to comply with any such rule of the
164 commission.
165 Section 3. Section 366.97, Florida Statutes, is created to
166 read:
167 366.97 Redundant poles; transfer of ownership; penalties.—
168 (1) The Legislature finds that:
169 (a) It is in the public interest for public utilities,
170 communications services providers, and cable television
171 operators that own poles to harden their infrastructure to
172 strengthen the ability of their above-ground infrastructure to
173 withstand extreme weather conditions, by and among other things,
174 replacing older poles with newer, stronger poles; however, this
175 work combined with the undergrounding of electrical facilities
176 may result in redundant poles within public rights-of-way and
177 easements for significant durations because owners of third
178 party pole attachments may not keep pace in removing their
179 facilities from the old poles.
180 (b) Pole owners that set new poles are prevented from
181 removing redundant poles when the pole attachments of other
182 entities remain on the old poles. Such pole owners continue to
183 incur liability as owners of poles they no longer use or want,
184 but which continue to be used by other entities.
185 (c) Redundant poles in the public rights-of-way and
186 easements are aesthetically unappealing and potentially create
187 overcrowding of, and unsafe conditions in, the public rights-of
188 way and easements.
189 (d) It is in the public interest to timely and sequentially
190 remove pole attachments from redundant poles and to transfer the
191 ownership of poles from pole owners that are no longer using the
192 poles to entities that continue to attach facilities to the
193 poles.
194 (2)(a) An attaching entity must remove its pole attachments
195 from a redundant pole within 90 calendar days after receipt of
196 written notice from the pole owner requesting such removal. The
197 commission shall provide the form and requirements for such
198 notice.
199 (b) If an attaching entity fails to remove a pole
200 attachment pursuant to paragraph (a), except to the extent
201 excused by an event of force majeure or other good cause as
202 determined by the commission, the pole owner or its agent may
203 transfer or relocate the pole attachment to the new pole at the
204 non-compliant attaching entity’s expense. This subsection does
205 not apply to an electric utility’s pole attachments.
206 (c) If a pole attachment is abandoned or no longer in use
207 by a noncompliant attaching entity, the pole owner or its agent
208 may remove the pole attachment at the noncompliant attaching
209 entity’s expense and may sell or dispose of the pole attachment.
210 The noncompliant attaching entity shall indemnify, defend, and
211 hold harmless the pole owner and its directors, officers,
212 agents, and employees from and against all liability, except to
213 the extent of any finding of gross negligence or willful
214 misconduct, including attorney fees and litigation costs,
215 arising in connection with the removal, transfer, sale, or
216 disposal of the pole attachments from a redundant pole by the
217 pole owner.
218 (d) The commission may require by rule that an attaching
219 entity post security instruments in favor of pole owners in
220 amounts reasonably sufficient to cover the cost of the removal,
221 transfer, sale, or disposal of pole attachments.
222 (3)(a) When a pole owner removes and relocates its overhead
223 facilities or converts its overhead facilities to underground,
224 in lieu of removal, transfer, sale, or disposal of the pole
225 attachments as provided in subsection (2), the pole owner may
226 transfer legal title of the redundant pole to an attaching
227 entity that has not removed a pole attachment within 90 days
228 after receipt of a notice to remove.
229 (b) Transfer of title shall occur by operation of law upon
230 the date a written notice of title transfer is sent by the pole
231 owner. The notice of title transfer must include pole
232 identification numbers, if applicable, and must describe with
233 specificity the locations of the pole or poles to be transferred
234 and their corresponding remaining book value.
235 (c) Within 60 days after transferring title, the attaching
236 entity shall remit payment to the transferor pole owner an
237 amount equal to the total of the remaining book value for all
238 poles listed in the notice of title transfer.
239 (d) A transferor pole owner may seek to enforce its rights
240 under this subsection, including its right to payment, in the
241 circuit court in whose jurisdiction the transferred poles are
242 located. The transferor pole owner is entitled to prejudgment
243 interest at the prevailing statutory rate, and the prevailing
244 party in any such action is entitled to recover its reasonable
245 attorney fees and court costs.
246 (e) Upon transfer of title, all obligation, responsibility,
247 and liability incumbent upon a pole owner in this state
248 including, but not limited to, safety, vegetation management,
249 repair, replacement, maintenance, relocation, removal, emergency
250 response, storm restoration, taxes, and third-party liability,
251 shall immediately become the legal obligation, responsibility,
252 and liability of the new pole owner. The transferor pole owner
253 is relieved of all such obligation, responsibility, and
254 liability immediately upon transfer of title.
255 (4) The commission shall impose monetary penalties upon any
256 entity subject to its jurisdiction which is found to be in
257 violation of this section. Upon petition by a pole owner, the
258 commission may issue orders requiring the removal or transfer of
259 pole attachments by noncompliant attaching entities and shall
260 impose monetary penalties in accordance with this section.
261 (5) All monetary penalties assessed by the commission
262 pursuant to this section must be used by the commission to
263 provide grants for the installing and upgrading of broadband
264 infrastructure in unserved and underserved rural and low-income
265 areas of this state. The commission shall establish criteria for
266 the award of grants from the fund to businesses and
267 organizations that have demonstrated the ability to construct
268 and install infrastructure and that have submitted an
269 application and proposal detailing how the grant funds would
270 further the objectives of this subsection to expand broadband
271 services in unserved and underserved areas.
272 (6) This section may not be construed to do any of the
273 following:
274 (a) Prevent a party at any time from entering into a
275 voluntary agreement authorizing a pole owner to remove an
276 attaching entity’s pole attachment. It is the intent of the
277 Legislature to encourage parties to enter into such voluntary
278 agreements without commission approval.
279 (b) Impair the contract rights of a party to a valid pole
280 attachment agreement in existence before the effective date of
281 this act.
282 (7) The commission shall adopt rules by October 1, 2021, to
283 implement this section, including rules providing for the
284 sequential removal of all pole attachments from redundant poles
285 and establishing monetary penalties to be imposed against any
286 entity in violation of this section.
287 Section 4. The Division of Law Revision is directed to
288 replace the phrase “the effective date of this act” wherever it
289 occurs in this act with the date this act becomes a law.
290 Section 5. This act shall take effect upon becoming a law.