The Florida Senate

¹337.401  Use of right-of-way for utilities subject to regulation; permit; fees.--

(1)  The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining along, across, or on any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, telephone, or telegraph lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures hereinafter referred to as the "utility."

(2)  The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)(a)  Because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the Legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to telecommunications companies placing or maintaining telecommunications facilities in its roads or rights-of-way must be generally applicable to all telecommunications companies and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining telecommunications facilities in its roads or rights-of-way. In addition to other reasonable rules or regulations that a municipality or county may adopt relating to the placement or maintenance of telecommunications facilities in its roads or rights-of-way under this subsection, a municipality or county may require a telecommunications company that places or seeks to place facilities in its roads or rights-of-way to register with the municipality or county and to provide the name of the registrant; the name, address, and telephone number of a contact person for the registrant; the number of the registrant's current certificate of authorization issued by the Florida Public Service Commission or the Federal Communications Commission; and proof of insurance or self-insuring status adequate to defend and cover claims.

(b)  Each municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power. Any rules or regulations adopted by a municipality or county which govern the occupation of its roads or rights-of-way by telecommunications companies must be related to the placement or maintenance of facilities in such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters necessary to manage the roads or rights-of-way of the municipality or county.

(c)1.  It is the intention of the state to treat all providers of communications services that use or occupy municipal or charter county roads or rights-of-way for the provision of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees. Certain providers of communications services have been granted by general law the authority to offset permit fees against franchise or other fees while other providers of communications services have not been granted this authority. In order to treat all providers of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees, each municipality and charter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and must inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.(I)  The municipality or charter county may require and collect permit fees from any providers of communications services that use or occupy municipal or county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a municipality or charter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

(II)  To ensure competitive neutrality among providers of communications services, for any municipality or charter county that elects to exercise its authority to require and collect permit fees under this sub-subparagraph, the rate of the local communications services tax imposed by such jurisdiction, as computed under s. 202.20(1) and (2), shall automatically be reduced by a rate of 0.12 percent.

b.  Alternatively, the municipality or charter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies municipal or charter county roads or rights-of-way for the provision of communications services; however, each municipality or charter county that elects to operate under this sub-subparagraph retains all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a municipality or charter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that municipality or charter county may be increased by ordinance by an amount not to exceed a rate of 0.12 percent.

c.  A municipality or charter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

2.  Each noncharter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and shall inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.  The noncharter county may elect to require and collect permit fees from any providers of communications services that use or occupy noncharter county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a noncharter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

b.  Alternatively, the noncharter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies noncharter county roads or rights-of-way for the provision of communications services; however, each noncharter county that elects to operate under this sub-subparagraph shall retain all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a noncharter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that noncharter county may be increased by ordinance by an amount not to exceed a rate of 0.24 percent, to replace the revenue the noncharter county would otherwise have received from permit fees for providers of communications services.

c.  A noncharter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

3.  Except as provided in this paragraph, municipalities and counties retain all existing authority to require and collect permit fees from users or occupants of municipal or county roads or rights-of-way and to set appropriate permit fee amounts.

(d)  After January 1, 2001, in addition to any other notice requirements, a municipality must provide to the Secretary of State, at least 10 days prior to consideration on first reading, notice of a proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. After January 1, 2001, in addition to any other notice requirements, a county must provide to the Secretary of State, at least 15 days prior to consideration at a public hearing, notice of a proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. The notice required by this paragraph must be published by the Secretary of State on a designated Internet website. The failure of a municipality or county to provide such notice does not render the ordinance invalid.

(e)  If any municipality requires any telecommunications company to pay a fee or other consideration as a condition for granting permission to occupy municipal streets and rights-of-way for poles, wires, and other fixtures, such fee or consideration may not exceed 1 percent of the gross receipts on recurring local service revenues for services provided within the corporate limits of the municipality by such telecommunications company. Included within such 1-percent maximum fee or consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to paragraph (g), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes levied or imposed by a municipality upon the telecommunications company. This paragraph shall not impair any franchise in existence on July 1, 1985.

(f)  A municipality may require any person providing telecommunication services defined in s. 203.012(7) as a condition for granting permission to occupy or use any city street, alley, viaduct, elevated roadway, bridge, or other public way to pay a fee or other consideration payable annually based on actual linear feet of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. In no event shall the fee or other consideration imposed pursuant to this paragraph be less than $500 per linear mile of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. Any fee or other consideration imposed by this paragraph in excess of $500 shall be applied in a nondiscriminatory manner and shall not exceed the sum of:

1.  Costs directly related to the inconvenience or impairment solely caused by the disturbance of the municipal right-of-way;

2.  The reasonable cost of the regulatory activity of the municipality; and

3.  The proportionate share of cost of land for such street, alley, or other public way attributable to utilization of the right-of-way by a telecommunication service provider.

Furthermore, no telecommunication service provider shall be required to pay more than one such fee or other consideration annually for the construction, maintenance, operation, repair, rebuilding, or replacement of a parallel telecommunications route owned by it, or by a subsidiary under its direct control, which makes use of the right-of-way of any municipality enacting an ordinance pursuant to this paragraph. The fee or other consideration imposed pursuant to this paragraph shall not apply in any manner to any telecommunication service provider who provides telecommunication services as defined in s. 203.012(3) for any services provided by such service provider. Any agreement entered into pursuant to the authority of this paragraph prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect until such agreement expires. Any ordinance enacted pursuant to this paragraph prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect unless the ordinance is repealed by the municipality. Notwithstanding the language contained herein a municipality may reenact any ordinance which has an automatic expiration date provided the ordinance does not increase the fees in effect in said ordinance in violation of this section.

(g)  Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to paragraph (e), a municipality may not levy on a telecommunications company a tax, fee, or other charge for operating as a telecommunications company within the jurisdiction of the municipality or which is in any way related to using its roads or rights-of-way. A municipality may not allow a telecommunications company to pay a fee or provide compensation in excess of the limits prescribed in this section. A municipality may not require or solicit in-kind compensation in lieu of any fees imposed pursuant to this section. Nothing in this paragraph shall impair any ordinance or agreement in effect on May 22, 1998, which provides for or allows in-kind compensation by a telecommunications company.

(h)  A local governmental entity may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a telecommunications company regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a telecommunications company.

(i)  A telecommunications company that has obtained permission to occupy the roads and rights-of-way of an incorporated municipality pursuant to s. 362.01 or that is otherwise lawfully occupying the roads or rights-of-way of a municipality on the effective date of this act shall not be required to obtain consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this paragraph shall be interpreted to limit the power of a municipality to impose a fee or adopt or enforce reasonable rules or regulations as provided in this section.

(j)  Except as expressly provided in this section, this section does not modify the authority of local governmental entities to levy the tax authorized in s. 166.231 or the duties of telecommunications companies under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way. Except as expressly provided in this section, this section does not limit or expand whatever powers counties may have relating to roads and rights-of-way. Nothing in this section shall limit or expand whatever authority a local government may have to impose any fee pursuant to 47 U.S.C. ss. 542 and 573.

(k)  As used in this section, "telecommunications company" has the same meaning as defined in s. 364.02.

(4)  This section, except subsections (1) and (2) and paragraph (3)(h), does not apply to the provision of pay telephone service on public or municipal roads or rights-of-way.

History.--s. 127, ch. 29965, 1955; s. 1, ch. 63-279; s. 1, ch. 65-52; ss. 23, 35, ch. 69-106; s. 141, ch. 84-309; s. 8, ch. 85-174; s. 8, ch. 86-155; ss. 2, 21, ch. 88-168; s. 8, ch. 89-232; s. 41, ch. 91-221; s. 26, ch. 94-237; s. 1, ch. 98-147; s. 2, ch. 99-354; ss. 50, 51, 58, 59, ch. 2000-260.

¹Note.--

A.  Section 59, ch. 2000-260, amended s. 337.401, effective June 30, 2001, to read:

337.401  Use of right-of-way for utilities subject to regulation; permit; fees.--

(1)  The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining along, across, or on any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, telephone, or telegraph lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures hereinafter referred to as the "utility."

(2)  The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)  If any municipality requires any telecommunications company to pay a fee or other consideration as a condition for granting permission to occupy municipal streets and rights-of-way for poles, wires, and other fixtures, such fee or consideration may not exceed 1 percent of the gross receipts on recurring local service revenues for services provided within the corporate limits of the municipality by such telecommunications company. Included within such 1-percent maximum fee or consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to subsection (5), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes levied or imposed by a municipality upon the telecommunications company. This subsection shall not impair any franchise in existence on July 1, 1985.

(4)  A municipality may by ordinance enter into an agreement with any person providing telecommunication services defined in s. 203.012(7) as a condition for granting permission to occupy or use any city street, alley, viaduct, elevated roadway, bridge, or other public way. The agreement shall permit the telecommunication service provider to construct, operate, maintain, repair, rebuild, or replace a telecommunications route within a municipal right-of-way. The agreement shall provide for a fee or other consideration payable annually based on actual linear feet of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. In no event shall the fee or other consideration imposed pursuant to this subsection be less than $500 per linear mile of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. Any fee or other consideration imposed by this subsection in excess of $500 shall be applied in a nondiscriminatory manner and shall not exceed the sum of:

(a)  Costs directly related to the inconvenience or impairment solely caused by the disturbance of the municipal right-of-way; and

(b)  The reasonable cost of the regulatory activity of the municipality.

(c)  The proportionate share of cost of land for such street, alley, or other public way attributable to utilization of the right-of-way by a telecommunication service provider.


Furthermore, no telecommunication service provider shall be required to pay more than one such fee or other consideration annually for the construction, maintenance, operation, repair, rebuilding, or replacement of a parallel telecommunications route owned by it, or by a subsidiary under its direct control, which makes use of the right-of-way of any municipality enacting an ordinance pursuant to this subsection. The fee or other consideration imposed pursuant to this subsection shall not apply in any manner to any telecommunication service provider who provides telecommunication services as defined in s. 203.012(3) for any services provided by such service provider. Any agreement entered into pursuant to the authority of this subsection prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect until such agreement expires. Any ordinance enacted pursuant to this subsection prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect unless the ordinance is repealed by the municipality. Notwithstanding the language contained herein a municipality may reenact any ordinance which has an automatic expiration date provided the ordinance does not increase the fees in effect in said ordinance in violation of this section.

(5)  Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to subsection (3), a municipality may not levy on a telecommunications company a tax, fee, or other charge for operating as a telecommunications company within the jurisdiction of the municipality or which is in any way related to using roads or rights-of-way. A municipality may not allow a telecommunications company to pay a fee or provide compensation in excess of the limits prescribed in this section. A municipality may not require or solicit in-kind compensation in lieu of any fees imposed pursuant to this section. Nothing in this subsection shall impair any ordinance or agreement in effect on the effective date of this act which provides for or allows in-kind compensation by a telecommunications company.

(6)  A local governmental entity may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a telecommunications company regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a telecommunications company.

(7)  A telecommunications company that has obtained permission to occupy the roads and rights-of-way of an incorporated city or town or that is otherwise lawfully occupying the roads or rights-of-way of a municipality on the effective date of this act shall not be required to obtain additional consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this subsection shall be interpreted to limit the power of a municipality to impose a fee or adopt or enforce reasonable rules or regulations as provided in this section.

(8)  Except as expressly provided in this section, this section does not modify the authority of local governmental entities to levy the tax authorized in s. 166.231 or the duties of telecommunications companies under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way. Except as expressly provided in this section, this section does not limit or expand whatever powers counties may have relating to roads and rights-of-way. Nothing in this section shall limit or expand whatever authority a local government may have to impose any fee pursuant to 47 U.S.C. ss. 542 and 573.

(9)  As used in this section, "telecommunications company" has the same meaning as defined in s. 364.02.

(10)  This section, except subsections (1), (2), and (6), does not apply to the provision of pay telephone service on public or municipal roads or rights-of-way.

B.  Effective October 1, 2001, s. 51, ch. 2000-260, amends s. 337.401, "as amended by [ch. 2000-260]." The amendment by s. 51, ch. 2000-260, does not incorporate the changes to s. 337.401 by s. 59, ch. 2000-260, effective June 30, 2001. The amendment by s. 51, ch. 2000-260, although effective October 1, 2001, is repealed by s. 58, ch. 2000-260, effective June 30, 2001. If the amendment to s. 337.401 by s. 51, ch. 2000-260, does take effect, it will read:

337.401  Use of right-of-way for utilities subject to regulation; permit; fees.--

(1)  The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining along, across, or on any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, telephone, telegraph, or other communications services lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures hereinafter referred to as the "utility."

(2)  The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)(a)  Because of the unique circumstances applicable to providers of communications services, including, but not limited to, the circumstances described in paragraph (e) and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services, except as otherwise provided in paragraph (f), to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way. In addition to other reasonable rules or regulations that a municipality or county may adopt relating to the placement or maintenance of communications facilities in its roads or rights-of-way under this subsection, a municipality or county may require a provider of communications services that places or seeks to place facilities in its roads or rights-of-way to register with the municipality or county and to provide the name of the registrant; the name, address, and telephone number of a contact person for the registrant; the number of the registrant's current certificate of authorization issued by the Florida Public Service Commission or the Federal Communications Commission; and proof of insurance or self-insuring status adequate to defend and cover claims.

(b)  Each municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power. Any rules or regulations adopted by a municipality or county which govern the occupation of its roads or rights-of-way by providers of communications services must be related to the placement or maintenance of facilities in such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters necessary to manage the roads or rights-of-way of the municipality or county.

(c)1.  It is the intention of the state to treat all providers of communications services that use or occupy municipal or charter county roads or rights-of-way for the provision of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees. Certain providers of communications services have been granted by general law the authority to offset permit fees against franchise or other fees while other providers of communications services have not been granted this authority. In order to treat all providers of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees, each municipality and charter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and must inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.(I)  The municipality or charter county may require and collect permit fees from any providers of communications services that use or occupy municipal or county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a municipality or charter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

(II)  To ensure competitive neutrality among providers of communications services, for any municipality or charter county that elects to exercise its authority to require and collect permit fees under this sub-subparagraph, the rate of the local communications services tax imposed by such jurisdiction, as computed under s. 202.20(1) and (2), shall automatically be reduced by a rate of 0.12 percent.

b.  Alternatively, the municipality or charter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies municipal or charter county roads or rights-of-way for the provision of communications services; however, each municipality or charter county that elects to operate under this sub-subparagraph retains all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a municipality or charter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that municipality or charter county may be increased by ordinance by an amount not to exceed a rate of 0.12 percent.

c.  A municipality or charter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

2.  Each noncharter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and shall inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.  The noncharter county may elect to require and collect permit fees from any providers of communications services that use or occupy noncharter county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a noncharter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

b.  Alternatively, the noncharter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies noncharter county roads or rights-of-way for the provision of communications services; however, each noncharter county that elects to operate under this sub-subparagraph shall retain all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a noncharter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that noncharter county may be increased by ordinance by an amount not to exceed a rate of 0.24 percent, to replace the revenue the noncharter county would otherwise have received from permit fees for providers of communications services.

c.  A noncharter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

3.  Except as provided in this paragraph, municipalities and counties retain all existing authority to require and collect permit fees from users or occupants of municipal or county roads or rights-of-way and to set appropriate permit fee amounts.

(d)  After January 1, 2001, in addition to any other notice requirements, a municipality must provide to the Secretary of State, at least 10 days prior to consideration on first reading, notice of a proposed ordinance governing a provider of communications services placing or maintaining communications facilities in its roads or rights-of-way. After January 1, 2001, in addition to any other notice requirements, a county must provide to the Secretary of State, at least 15 days prior to consideration at a public hearing, notice of a proposed ordinance governing a provider of communications services placing or maintaining communications facilities in its roads or rights-of-way. The notice required by this paragraph must be published by the Secretary of State on a designated Internet website. The failure of a municipality or county to provide such notice does not render the ordinance invalid.

(e)  The authority of municipalities and counties to require franchise fees from providers of communications services, with respect to the provision of communications services, is specifically preempted by the state, except as otherwise provided in paragraph (f), because of unique circumstances applicable to providers of communications services when compared to other utilities occupying municipal or county roads or rights-of-way. Providers of communications services may provide similar services in a manner that requires the placement of facilities in municipal or county roads or rights-of-way or in a manner that does not require the placement of facilities in such roads or rights-of-way. Although similar communications services may be provided by different means, the state desires to treat providers of communications services in a nondiscriminatory manner and to have the taxes, franchise fees, and other fees paid by providers of communications services be competitively neutral. Municipalities and counties retain all existing authority, if any, to collect franchise fees from users or occupants of municipal or county roads or rights-of-way other than providers of communications services, and the provisions of this subsection shall have no effect upon this authority. The provisions of this subsection do not restrict the authority, if any, of municipalities or counties or other governmental entities to receive reasonable rental fees based on fair market value for the use of public lands and buildings on property outside the public roads or rights-of-way for the placement of communications antennas and towers.

(f)  A municipality or county may request and negotiate for in-kind requirements, institutional networks, and contributions for, or in support of, the use or construction of public, educational, or governmental access facilities allowed under federal law from providers of cable service, and nothing in this section shall impair any ordinance or agreement in effect on July 1, 2000, which provides for or allows for such requirements, networks, or contributions, including the ability of providers of cable service to recover any such expenses pursuant to federal law. This subsection shall be reviewed by the Legislature during the 2001 legislative session in conjunction with the study required by this act.

(g)  Each municipality and county retains authority to negotiate all terms and conditions of a cable service franchise allowed by federal and state law except those terms and conditions related to franchise fees and the definition of gross revenues or other definitions or methodologies related to the payment or assessment of franchise fees on providers of cable services.

(h)  Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to paragraph (c), a municipality or county may not levy on a provider of communications services a tax, fee, or other charge or imposition for operating as a provider of communications services within the jurisdiction of the municipality or county which is in any way related to using its roads or rights-of-way. A municipality or county may not require or solicit in-kind compensation, except as otherwise provided in paragraph (f). Nothing in this paragraph shall impair any ordinance or agreement in effect on May 22, 1998, or any voluntary agreement entered into subsequent to that date, which provides for or allows in-kind compensation by a telecommunications company.

(i)  A municipality or county may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a provider of communications services regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a provider of communications services.

(j)  A provider of communications services that has obtained permission to occupy the roads or rights-of-way of an incorporated municipality pursuant to s. 362.01 or that is otherwise lawfully occupying the roads or rights-of-way of a municipality shall not be required to obtain consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this paragraph shall be interpreted to limit the power of a municipality to adopt or enforce reasonable rules or regulations as provided in this section.

(k)  Except as expressly provided in this section, this section does not modify the authority of municipalities and counties to levy the tax authorized in chapter 202 or the duties of providers of communications services under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way.

(4)  As used in this section, "communications services" and "cable services" have the same meanings ascribed in chapter 202.

(5)  This section, except subsections (1) and (2) and paragraph (3)(i), does not apply to the provision of pay telephone service on public, municipal, or county roads or rights-of-way.

C.  Section 52, ch. 2000-260, provides that "[t]he Legislature finds that it may be necessary to adopt a state policy regarding in-kind requirements, institutional networks, and contributions for, or in support of, the use or construction of public, educational, or governmental access facilities allowed under federal law currently imposed only on providers of cable service, especially in light of the in-kind requirements for providers of telecommunications services under s. 337.401(5), Florida Statutes, 1999. Given the development of alternative choices in the delivery of multichannel video programming, including programming by providers of wireless, satellite, Internet, and other video delivery systems, and the potential competitive inequities which may be associated with such requirements, networks, and contributions, the appropriate committees of the Legislature shall study and evaluate, during the 2001 legislative session, an appropriate state policy regarding these issues, including the option of calculating the present and future value of such requirements, networks, and contributions available to local governments in excess of the limitations imposed on franchise fees under 47 U.S.C. s. 542(b) as a part of the computation of replacement revenues under s. 202.20, Florida Statutes, in setting the local communications services tax rate."

²Note.--Section 50, ch. 2000-260, effective January 1, 2001, requires specified counties to inform the Department of Revenue of the election by certified mail by July 1, 2001. Section 59, ch. 2000-260, effective June 30, 2001, deletes this language, but with a different referenced due date--October 1, 2001. Section 51, ch. 2000-260, set to take effect October 1, 2001, but subject to repeal effective June 30, 2001, by s. 58, ch. 2000-260, provides for substitution of the "July 1, 2001" date for the certified mailing for "October 1, 2001."

³Note.--Section 50, ch. 2000-260, effective January 1, 2001, specifies that the election shall take effect October 1, 2001. Section 59, ch. 2000-260, effective June 30, 2001, deletes this language, but with a different referenced date--January 1, 2002. Section 51, ch. 2000-260, set to take effect October 1, 2001, but subject to repeal effective June 30, 2001, by s. 58, ch. 2000-260, provides for substitution of the "October 1, 2001" date for the effect of election for "January 1, 2002."

Note.--Former s. 338.17.