Florida Senate - 2021 CS for SB 1944
By the Committee on Appropriations; and Senator Albritton
576-04469-21 20211944c1
1 A bill to be entitled
2 An act relating to utility and communications poles;
3 amending s. 120.80, F.S.; exempting certain rules
4 adopted by the Public Service Commission from
5 legislative ratification requirements; amending s.
6 366.02, F.S.; defining terms; amending s. 366.04,
7 F.S.; requiring the commission to regulate and enforce
8 rates, charges, terms, and conditions for pole
9 attachments under certain circumstances; providing
10 requirements for such rules; providing construction;
11 providing situations under which a pole owner may deny
12 access to the owner’s pole on a nondiscriminatory
13 basis; requiring the commission to hear and resolve
14 complaints concerning rates, charges, terms,
15 conditions, voluntary agreements, and denial of access
16 relative to pole attachments; requiring the commission
17 to establish cost-based rates and charges for pole
18 attachments and apply certain decisions and orders of
19 the Federal Communications Commission; requiring the
20 commission to authorize certain parties to participate
21 as an intervenor in a specified number of
22 administrative proceedings; requiring the commission
23 to adopt rules by a specified date and provide
24 certification to the Federal Communications Commission
25 upon such adoption; requiring the commission to
26 regulate the safety, vegetation management, repair,
27 replacement, maintenance, relocation, emergency
28 response, and storm restoration requirements for poles
29 of communications services providers; providing an
30 exception; requiring the commission to adopt rules,
31 including monetary penalties, by a specified date;
32 authorizing the commission to access the books and
33 records of communications services providers for
34 specified purposes; providing that such information
35 that contains proprietary confidential business
36 information retains its confidential or exempt status
37 when held by the commission; creating s. 366.97, F.S.;
38 requiring the commission by rule to create a process
39 requiring advance hardening project notice; requiring
40 attaching entities to remove pole attachments from
41 redundant poles within a specified timeframe after
42 receipt of electronic or written notice from the pole
43 owner; requiring the commission to provide the form
44 and requirements for such notice by rule; authorizing
45 a pole owner or its agent to transfer or relocate pole
46 attachments of an attaching entity at the entity’s
47 expense under certain circumstances; providing an
48 exception; requiring attaching entities to submit
49 payment within a specified timeframe; authorizing pole
50 owners to seek enforcement of such payment; requiring
51 that the pole owner and its directors, officers,
52 agents, and employees be held harmless under certain
53 circumstances for such actions; authorizing a pole
54 owner to remove and sell or dispose of certain
55 abandoned pole attachments; authorizing the commission
56 to require attaching entities to post certain security
57 instruments by rule; authorizing the commission to
58 issue orders for the removal or transfer of pole
59 attachments by noncompliant attaching entities upon
60 petition by a pole owner; providing construction;
61 requiring the commission to adopt rules by a specified
62 date; providing a directive to the Division of Law
63 Revision; providing an effective date.
64
65 Be It Enacted by the Legislature of the State of Florida:
66
67 Section 1. Paragraph (g) is added to subsection (13) of
68 section 120.80, Florida Statutes, to read:
69 120.80 Exceptions and special requirements; agencies.—
70 (13) FLORIDA PUBLIC SERVICE COMMISSION.—
71 (g) Rules adopted by the Florida Public Service Commission
72 to implement ss. 366.04(8) and (9) and 366.97 are not subject to
73 s. 120.541.
74 Section 2. Subsections (4) through (9) are added to section
75 366.02, Florida Statutes, to read:
76 366.02 Definitions.—As used in this chapter:
77 (4) “Attaching entity” means a person that is a local
78 exchange carrier, a public utility, a communications services
79 provider, a broadband service provider, or a cable television
80 operator that owns or controls pole attachments.
81 (5) “Communications services” has the same meaning as in s.
82 202.11(1).
83 (6) “Pole” means a pole used for electric distribution
84 service, streetlights, communications services, local exchange
85 services, or cable television services which is owned in whole
86 or in part by a pole owner. The term does not include a pole
87 used solely to support wireless communications services
88 facilities.
89 (7) “Pole attachment” means any attachment by a public
90 utility, local exchange carrier communications services
91 provider, broadband provider, or cable television operator to a
92 pole, duct, conduit, or right-of-way owned or controlled by a
93 pole owner.
94 (8) “Pole owner” means a local exchange carrier, a public
95 utility, a communications services provider, or a cable
96 television operator that owns a pole.
97 (9) “Redundant pole” means a pole owned or controlled by a
98 pole owner which is:
99 (a) Within 50 feet of a new pole that is intended to
100 replace the old pole from which some or all of the pole
101 attachments have not been removed and transferred to the new
102 pole;
103 (b) Left standing after the pole owner has relocated its
104 facilities to underground but on which pole attachments of other
105 attaching entities remain; or
106 (c) Left standing after a pole owner’s attachments have
107 been removed from that route or location to accommodate a new
108 route or design for the delivery of service.
109 Section 3. Subsections (8) and (9) are added to section
110 366.04, Florida Statutes, to read:
111 366.04 Jurisdiction of commission.—
112 (8)(a) The commission shall regulate and enforce rates,
113 charges, terms, and conditions of pole attachments, including
114 the types of attachments regulated under 47 U.S.C. s. 224(a)(4),
115 attachments to streetlight fixtures, attachments to poles owned
116 by a public utility, or attachments to poles owned by a
117 communications services provider, to ensure that such rates,
118 charges, terms, and conditions are just and reasonable. The
119 commission’s authority under this subsection includes, but is
120 not limited to, the state regulatory authority referenced in 47
121 U.S.C. s. 224(c).
122 (b) In developing such rules, the commission shall consider
123 the interests of the subscribers and users of the services
124 offered through such pole attachments, as well as the interests
125 of the consumers of any pole owner providing such attachments.
126 (c) It is the intent of the Legislature to encourage
127 parties to enter into voluntary pole attachment agreements, and
128 this subsection may not be construed to prevent parties from
129 voluntarily entering into pole attachment agreements without
130 commission approval.
131 (d) A party’s right to nondiscriminatory access to a pole
132 under this subsection is identical to the rights afforded under
133 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its
134 poles on a nondiscriminatory basis when there is insufficient
135 capacity, for reasons of safety and reliability, and when
136 required by generally applicable engineering purposes. A pole
137 owner’s evaluation of capacity, safety, reliability, and
138 engineering requirements must consider relevant construction and
139 reliability standards approved by the commission.
140 (e) The commission shall hear and resolve complaints
141 concerning rates, charges, terms, conditions, voluntary
142 agreements, or any denial of access relative to pole attachments
143 with regard to the types of attachments regulated under 47
144 U.S.C. s. 224, attachments to streetlight fixtures, or
145 attachments owned by a communications services provider. Federal
146 Communications Commission precedent is not binding upon the
147 commission in the exercise of its authority under this
148 subsection. When taking action upon such complaints, the
149 commission shall establish just and reasonable cost-based rates,
150 terms, and conditions for pole attachments and shall apply the
151 decisions and orders of the Federal Communications Commission
152 and any appellate court decisions reviewing an order of the
153 Federal Communications Commission regarding pole attachment
154 rates, terms, or conditions in determining just and reasonable
155 pole attachment rates, terms, and conditions unless a pole owner
156 or attaching entity establishes by competent substantial
157 evidence pursuant to proceedings conducted pursuant to ss.
158 120.569 and 120.57 that an alternative cost of service-based
159 pole attachment rate is appropriate and in the public interest.
160 (f) In the administration and implementation of this
161 subsection, the commission shall authorize any petitioning pole
162 owner or attaching entity to participate as an intervenor with
163 full party rights under chapter 120 in the first five formal
164 administrative proceedings conducted to determine pole
165 attachment rates under this section. These initial five
166 proceedings are intended to provide commission precedent on the
167 establishment of pole attachment rates by the commission and
168 help guide negotiations toward voluntary pole attachment
169 agreements. After the fifth such formal administrative
170 proceeding is concluded by final order, parties to subsequent
171 pole attachment rate proceedings are limited to the specific
172 pole owner and pole attaching entities involved in and directly
173 affected by the specific pole attachment rate.
174 (g) The commission shall adopt procedural rules by January
175 1, 2022, to administer and implement this subsection and, upon
176 adoption of such rules, shall provide its certification to the
177 Federal Communications Commission pursuant to 47 U.S.C. s.
178 224(c)(2).
179 (9)(a) The commission shall regulate the safety, vegetation
180 management, repair, replacement, maintenance, relocation,
181 emergency response, and storm restoration requirements for poles
182 of communication services providers. This subsection does not
183 apply to a communications services provider that owns no poles.
184 (b) The commission shall adopt rules by April 1, 2022, to
185 administer and implement this subsection, including, but not
186 limited to:
187 1. Mandatory pole inspections, including repair or
188 replacement; vegetation management requirements for poles owned
189 by providers of communications services; and
190 2. Monetary penalties to be imposed upon any communications
191 services provider that fails to comply with any such rule of the
192 commission. Monetary penalties imposed by the commission must be
193 consistent with s. 366.095.
194 (c) The commission may access the books and records of
195 communications services providers to the limited extent
196 necessary to perform its functions and to exercise its authority
197 under subsection (8), this subsection, and s. 366.97(4). Upon
198 request by a communications services provider, any records that
199 are shown and found to be proprietary confidential business
200 information that is confidential or exempt from disclosure under
201 s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution
202 which are received by the commission under this paragraph shall
203 retain their confidential or exempt status when held by the
204 commission.
205 Section 4. Section 366.97, Florida Statutes, is created to
206 read:
207 366.97 Redundant poles; transfer of ownership.—
208 (1) The commission by rule shall determine a process by
209 which pole owners shall provide at least 180 calendar days’
210 electronic or written advance notice to affected attaching
211 entities of major hardening projects the purpose of which is to
212 replace poles to ensure the poles meet extreme wind loading
213 requirements. The advance hardening project notice must include:
214 (a) The scope of the major hardening project, to the extent
215 determined, the locations of the affected poles, the expected
216 start date, and the expected completion date of the major
217 hardening project; and
218 (b) The date, time, and location of a field meeting for the
219 pole owner and attaching entities to review and discuss the
220 planned major hardening project details, including the types of
221 replacement poles to be used. The field meeting must occur no
222 sooner than 15 calendar days after the date of the notice and no
223 later than 60 calendar days after the notice and, at a minimum,
224 must include sufficient information to enable the attaching
225 entity to locate the affected poles and identify the owner of
226 any facilities attached to the poles.
227 (2)(a) An attaching entity must remove its pole attachments
228 from a redundant pole within 180 calendar days after receipt of
229 an electronic or a written notice from the pole owner requesting
230 such removal. The commission shall determine by rule the
231 sufficiency of, and requirements for, such removal notice and
232 may consider the use of a joint use notification software
233 program to accomplish such removal notice.
234 (b) If an attaching entity fails to remove a pole
235 attachment pursuant to paragraph (a), except to the extent
236 excused by an event of force majeure or other good cause as
237 determined by the commission, the pole owner or its agent may
238 transfer or relocate the pole attachment to the new pole at the
239 noncompliant attaching entity’s expense. This subsection does
240 not apply to an electric utility’s pole attachments. An
241 attaching entity shall submit payment to the pole owner within
242 60 days after receipt of the pole owner’s invoice. A pole owner
243 may seek to enforce its right to payment under this paragraph in
244 circuit court and is entitled to prejudgment interest at the
245 prevailing statutory rate and reasonable attorney fees and court
246 costs. Upon receipt by the pole owner of written notice that
247 complies with the commission rule, the noncompliant attaching
248 entity shall indemnify, defend, and hold harmless the pole owner
249 and its directors, officers, agents, and employees from and
250 against all liability, except to the extent of any finding of
251 negligence or willful misconduct, including attorney fees and
252 litigation costs, arising in connection with the transfer of the
253 pole attachment from a redundant pole to a new pole by the pole
254 owner.
255 (c) If a pole attachment is no longer in use by a
256 noncompliant attaching entity, the pole owner or its agent may
257 remove the pole attachment at the noncompliant attaching
258 entity’s expense and may sell or dispose of the pole attachment,
259 except to the extent the attaching entity’s noncompliance is
260 excused by an event of force majeure or other good cause as
261 determined by the commission. An attaching entity shall submit
262 payment to the pole owner within 60 days after receipt of the
263 pole owner’s invoice. A pole owner may seek to enforce its right
264 to payment under this paragraph in circuit court and is entitled
265 to prejudgment interest at the prevailing statutory rate and
266 reasonable attorney fees and court costs. Upon receipt by the
267 pole owner of written notice that complies with the commission
268 rule, the noncompliant attaching entity shall indemnify, defend,
269 and hold harmless the pole owner and its directors, officers,
270 agents, and employees from and against all liability, except to
271 the extent of any finding of negligence or willful misconduct,
272 including attorney fees and litigation costs, arising in
273 connection with the removal, transfer, sale, or disposal of the
274 pole attachments from a redundant pole by the pole owner.
275 (d) The commission may require by rule that an attaching
276 entity post security instruments in favor of pole owners in
277 amounts reasonably sufficient to cover the cost of the removal,
278 transfer, sale, or disposal of pole attachments. The rules do
279 not apply to existing agreements between the pole owners and the
280 attaching entity if the agreement expressly provides for, or
281 disclaims, security requirements.
282 (3) Upon petition by a pole owner, the commission may issue
283 orders requiring the removal or transfer of pole attachments by
284 noncompliant attaching entities.
285 (4) This section may not be construed to do any of the
286 following:
287 (a) Prevent a party at any time from entering into a
288 voluntary agreement authorizing a pole owner to remove an
289 attaching entity’s pole attachment. It is the intent of the
290 Legislature to encourage parties to enter into such voluntary
291 agreements without commission approval.
292 (b) Impair the contract rights of a party to a valid pole
293 attachment agreement in existence before the effective date of
294 this act.
295 (5) The commission shall adopt rules by April 1, 2022, to
296 implement this section, including rules providing for the timely
297 and coordinated removal of all pole attachments from redundant
298 poles and establishing monetary penalties to be imposed against
299 any entity in violation of this section.
300 Section 5. The Division of Law Revision is directed to
301 replace the phrase “the effective date of this act” wherever it
302 occurs in this act with the date this act becomes a law.
303 Section 6. This act shall take effect upon becoming a law.