Tourism, Infrastructure & Energy Subcommittee, Florida House of Representatives (2021-03-16)
Summary
A meeting packet for a Florida House subcommittee on tourism, infrastructure and energy, containing bill texts and amendments for the 2021 session. HB 365 would regulate peer-to-peer car-sharing programs. It would let insurers exclude coverage for shared vehicles under an owner's policy, require programs to warn owners that sharing a vehicle with a lien may violate the loan contract, and require programs to keep usage records for at least the personal injury limitation period and to make consumer disclosures. The packet also includes HB 1113 and an amendment to HB 1567, published March 15, 2021, on the transfer of utility pole ownership, monetary penalties for violations and broadband infrastructure grants funded from those penalties.
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“Tourism, Infrastructure & Energy Subcommittee, Florida House of Representatives (2021-03-16).”
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FLORIODA HO US E O F REPRESENTATIVE S$ HB 365 2021 401 (c) Exclusions in motor vehicle insurance policies.—An 402} authorized insurer that writes motor vehicle liability insurance 403] in this state may exclude any and all coverage and the duty to 404} defend or indemnify for any claim afforded under a shared 405] vehicle owner's motor vehicle insurance policy, including, but 406 not limited to: 407 1. Liability coverage for bodily injury and property 408| damage; 409 2. Personal injury protection coverage; 410 3. Uninsured and underinsured motorist coverage; 411 4. Medical payments coverage; 412 5. Comprehensive physical damage coverage; and 413 6. Collision physical damage coverage. 414 415| This paragraph does not invalidate or limit any exclusion 416| contained in a motor vehicle insurance policy, including any 417] insurance policy in use or approved for use which excludes 418 coverage for motor vehicles made available for rent, sharing, or 419| hire or for any business use. 420 (d) Contribution against indemnification.—A shared vehicle 421 owner's motor vehicle insurer that defends or indemnifies a 422) claim against a shared vehicle which is excluded under the terms 423} of its policy has the right to seek contribution against the 424] motor vehicle insurer of the peer-to-peer car-sharing program if 425 the claim is: Page 17 of 23 CODING: Words stricken are deletions; words underlined are additi FLORIODA HO US E O F REP RES EN TAT IVE §S HB 365 2021 426 1. Made against the shared vehicle owner or the shared 427| vehicle driver for loss or injury that occurs during the car- 428] sharing period; and 429 2. Excluded under the terms of its policy. 430 (4) NOTIFICATION OF IMPLICATIONS OF LIEN.—At the time a 431] motor vehicle owner registers as a shared vehicle owner on a 432) peer-to-peer car-sharing program and before the shared vehicle 433] owner may make a shared vehicle available for car sharing on the 434| peer-to-peer car-sharing program, the peer-to-peer car-sharing 435] program must notify the shared vehicle owner that, if the shared 436] vehicle has a lien against it, the use of the shared vehicle 437| through a peer-to-peer car-sharing program, including the use 438] without physical damage coverage, may violate the terms of the 439 contract with the lienholder. 440 (5) RECORDKEBPING.—A peer-to-peer car-sharing program 441) shall: 442 (a) Collect and verify records pertaining to the use of a 443 shared vehicle, including, but not limited to, the times used, 444) fees paid by the shared vehicle driver, and revenues received by 445 the shared vehicle owner. 446 (bo) Retain the records in paragraph (a) for a time period 447} not less than the applicable personal injury statute of 448 limitations. 449 (c) Provide the information contained in the records in 450| paragraph (a) upon request to the shared vehicle owner, the Page 18 of 23 CODING: Words stricken are deletions; words underlined are additions. hb0365-00 FLORIDA H O US E O F REP RES EN TATIV E S HB 365 2021 451 shared vehicle owner's insurer, or the shared vehicle driver's 452] insurer to facilitate a claim coverage investigation. 453 (6) CONSUMER PROTECTIONS .— 454 (a) Disclosures.—Each peer-to-peer car-sharing program 455] agreement made in this state must disclose to the shared vehicle 456 owner and the shared vehicle driver: 457 1. Any right of the peer-to-peer car-sharing program to 458 seek indemnification from the shared vehicle owner or the shared 459] vehicle driver for economic loss resulting from a breach of the 460| terms and conditions of the peer-to-peer car-sharing program 461 agreement. 462 2. That a motor vehicle insurance policy issued to the 463 shared vehicle owner for the shared vehicle or to the shared 464| vehicle driver does not provide a defense or indemnification for 465| any claim asserted by the peer-to-peer car-sharing program. 466 3. That the peer-to-peer car-sharing program's insurance 467 coverage on the shared vehicle owner and the shared vehicle 468| driver is in effect only during each car-sharing period and 469| that, for any use of the shared vehicle by the shared vehicle 470} driver after the car-sharing termination time, the shared 471| vehicle driver and the shared vehicle owner may not have 472 insurance coverage. 473 4. The daily rate, fees, and, if applicable, any insurance 474 or protection package costs that are charged to the shared 475 vehicle owner or the shared vehicle driver. Page 19 of 23 CODING: Words stricken are deletions; words underlined are additions. hb0365-00 FLORIODA HO US E O F R E—P RES ENTATIVE §S HB 365 2021 476 5. That the shared vehicle owner's motor vehicle liability 477| insurance may exclude coverage for a shared vehicle. 478 6. An emergency telephone number of the personnel capable 479| of fielding calls for roadside assistance and other customer 480 service inguiries. 481 7. Any conditions under which a shared vehicle driver must 482| maintain a personal motor vehicle insurance policy with certain 483] applicable coverage limits on a primary basis in order to book a 484 shared vehicle. 485 (b) Driver license verification and data retention.— 486 1. A peer-to-peer car-sharing program may not enter into a 487| peer-to-peer car-sharing program agreement with a driver unless 488 the driver: 489 a. Holds a driver license issued under chapter 322 which 490 authorizes the driver to drive vehicles of the class of the 491 shared vehicle; 492 low Is a nonresident who: 493 (I) Holds a driver license issued by the state or country 494 of the driver's residence which authorizes the driver in that 495] state or country to drive vehicles of the class of the shared 496 vehicle; and 497 (II) Is at least the same age as that required of a 498 resident to drive; or 499 c. Is otherwise specifically authorized by the Department 500} of Highway Safety and Motor Vehicles to drive vehicles of the Page 20 of 23 CODING: Words stricken are deletions; words underlined are additions. hb0365-00 FLORIODA H O U S E O F REP RES EN TAT IVE S HB 365 2021 501 class of the shared vehicle. 502 2. A peer-to-peer car-sharing program shall keep a record 504 a. The name and address of the shared vehicle driver; 505 b. The number of the driver license of the shared vehicle 506] driver and each other person, if any, who will operate the 507 shared vehicle; and 508 c. The place of issuance of the driver license. 509 (c) Responsibility for equipment.—A peer-to-peer car- 510] sharing program has sole responsibility for any equipment that 511] is put in or on the shared vehicle to monitor or facilitate the 512} peer-to-peer car-sharing transaction, including a GPS system. 513] The peer-to-peer car-sharing program shall indemnify and hold 514} harmless the shared vehicle owner for any damage to or theft of 515} such equipment during the car-sharing period which is not caused 516] by the shared vehicle owner. The peer-to-peer car-sharing 517] program may seek indemnity from the shared vehicle driver for 518] any damage to or loss of such equipment which occurs during the 519} car-sharing period. 520 (ad) Motor vehicle safety recalls.—At the time a motor 521| vehicle owner registers as a shared vehicle owner on a peer-to- 522| peer car-sharing program and before the shared vehicle owner may 523] make a shared vehicle available for car sharing on the peer-to- 524] peer car-sharing program, the peer-to-peer car-sharing program 525 must: Page 21 of 23 CODING: Words stricken are deletions; words underlined are additions. hb0365-00 FLORIODA H O US E O F REP RES EN TA TIVE § HB 365 2021 526 1. Verify that the shared vehicle does not have any safety 527 recalls on the vehicle for which the repairs have not been made; 528 and 529 2. Notify the shared vehicle owner that if the shared 530 vehicle owner: 531 a. Has received an actual notice of a safety recall on the 53:2 vehicle, he or she may not make a vehicle available as a shared 533] vehicle on the peer-to-peer car-sharing program until the safety 534 recall repair has been made. 535 b. Receives an actual notice of a safety recall ona 536 shared vehicle while the shared vehicle is made available on the 537| peer-to-peer car-sharing program, he or she shall remove the 538] shared vehicle as available on the peer-to-peer car-sharing 539] program as soon as practicably possible after receiving the 540] notice of the safety recall and until the safety recall repair 541 has been made. 542 c. Receives an actual notice of a safety recall while the 543] shared vehicle is in the possession of a shared vehicle driver, 544] he or she shall notify the peer-to-peer car-sharing program 545] about the safety recall as soon as practicably possible after 546] receiving the notice of the safety recall, so that he or she may 547| address the safety recall repair. 548 (7) CONSTRUCTION.—This section does not limit: 549 (a) The liability of a peer-to-peer car-sharing program 550 for any act or omission of the peer-to-peer car-sharing program Page 22 of 23 CODING: Words strieken are deletions; words underlined are additions. hb0365-00 FLORIDA HO US E O F REP RES EN TATIV ES HB 365 2021 551} which results in bodily injury to a person as a result of the 552] use of a shared vehicle through peer-to-peer car sharing; or 5o5 (bo) The ability of a peer-to-peer car-sharing program to 554 seek, by contract, indemnification from the shared vehicle owner 555] or the shared vehicle driver for economic loss resulting from a 556| breach of the terms and conditions of the peer-to-peer car- 557] sharing program agreement. 558 Section 4. This act shall take effect October 1, 2021. Page 23 of 23 CODING: Words stricken are deletions; words underlined are additions. hb0365-00 HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: HB 1113 Traffic and Pedestrian Safety SPONSOR(S): Fine TIED BILLS: IDEN./SIM. BILLS: SB 1412 REFERENCE ACTION ANALYST STAFF DIRECTOR or BUDGET/POLICY CHIEF 1) Tourism, Infrastructure & Energy Subcommittee aiti= Keating OC 2) Infrastructure & Tourism Appropriations Subcommittee 3) Commerce Committee SUMMARY ANALYSIS Florida law provides that the driver of a vehicle must stop for a pedestrian who is walking in a crosswalk at the instruction of a traffic control signal or where signage indicates the driver must stop. If there are no traffic control signals or signage in place at a crosswalk, the driver of a vehicle must yield to a pedestrian who is on the half of the roadway on which the vehicle is traveling. If traffic control signals are in operation, pedestrians may not cross at any place except in a marked crosswalk. If there is no crosswalk, pedestrians crossing a roadway must yield to vehicles. The Department of Transportation (DOT) and local governments utilize various types of equipment or signals to indicate when pedestrians may safely cross at midblock crosswalks (crosswalks that are not at an intersection). One type of signal commonly used is a rectangular rapid flash beacon (RRFB). The RRFB consists of two rapidly and alternately flashing yellow rectangular LED lights that function as a warning beacon to drivers. Pedestrians press the call button to activate the yellow flashing lights, but should wait for motorists to stop before they cross. The bill creates the “Sophia Nelson Pedestrian Safety Act.” The bill requires a traffic engineering conducted by a Florida licensed professional engineer prior to installing a new mid-block crosswalk (MBC). MBCs installed on public roads must conform to certain provisions of the latest Manual on Uniform Traffic Control Devices (MUTCD) and other applicable DOT standards, manuals, and specifications, and must include a pedestrian-facing sign containing language stating duties applicable to a pedestrian. The bill requires, by October 1, 2024, that the entity with jurisdiction over a public highway, street, or road with a MBC must ensure that such crosswalk is controlled by the required coordinated traffic control signal devices and pedestrian control signals. Alternatively, the entity may remove the crosswalk. Additionally, by October 1, 2022, the bill requires DOT to seek approval from the federal government to allow the use of red RRFB in place of yellow RRFBs. If approved, all entities with jurisdiction over MBCs must replace existing yellow RRFBs with red RRFBs within 12 months of Federal authorization. If the request is denied, all entities with jurisdiction over MBCs must remove all yellow RRFBs or retrofit MBCs with legally acceptable equipment as required in the bill. The bill provides legislative findings that this bill fulfills an important state interest. The bill will likely have a significant, negative fiscal impact to state and local governments. See Fiscal Analysis for details. The bill has an effective date of October 1, 2021. This document does not reflect the intent or official position of the bill sponsor or House of Representatives. STORAGE NAME: h1113.TIE.DOCX DATE: 3/12/2021 FULL ANALYSIS I. SUBSTANTIVE ANALYSIS A. EFFECT OF PROPOSED CHANGES: Current Situation Unless otherwise directed by a law enforcement officer, pedestrians are required to obey the instructions of official traffic control devices that are specifically applicable to pedestrians.' If a sidewalk is provided, and no circumstances prevent a pedestrian’s use of the sidewalk, a pedestrian is prohibited from walking on a roadway that is paved for vehicular traffic.? If a sidewalk is not provided, a pedestrian, when practicable, must walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic that may approach from the opposite direction.* The driver of a vehicle must stop for a pedestrian who is walking in a crosswalk at the instruction of a traffic control signal or where signage indicates the driver to stop. If there are no traffic control signals or signage in place at a crosswalk, the driver of a vehicle must yield to a pedestrian who is on the half of the roadway on which the vehicle is traveling.‘ If traffic control signals are in operation, pedestrians cannot cross at any place except in a marked crosswalk.® If there are no crosswalks, pedestrians crossing a roadway must yield to vehicles.® When pedestrian traffic control signals or signage is installed, such indicators must conform to the requirements of the most recent Manual on Uniform Traffic Control Devices (MUTCD).’ The MUTCD defines the standards used by road managers nationwide to install and maintain traffic control devices on all public streets, highways, bikeways, and private roads open to public travel. The Federal Highway Administration (FHWA) maintains the MUTCD.® The Department of Transportation (DOT) and local governments utilize various types of MUTCD approved signais to indicate when pedestrians may safely cross midblock crosswalks (MBCs).° Two types of signals commonly used by DOT and local governments are a rectangular rapid flash beacon (RRFB) and a pedestrian hybrid beacon.'® The RRFB consists of two rapidly and alternately flashing yellow rectangular LED lights that function as a warning beacon to drivers.'' Pedestrians press the call button to activate the flashing lights, but should wait for motorists to stop before they cross.'* The pedestrian hybrid beacon consists of three signal sections with a circular yellow signal indication centered below two horizontally aligned circular red signal indications.'? The pedestrian hybrid beacon is not illuminated until a pedestrian activates it and triggers the warning flashing yellow lens facing the street."* After a set amount of time, the indication changes to a solid yellow light to inform drivers to 2S. 316.130(3), F.S. 3§. 316.130(4), F.S. 4S. 316.130(7), F-.S. 3 §, 316.130(11), F.S. ®§. 316.130(10), F.S. TS 316.0755, F.S. 5 U.S. Department of Transportation, Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), (updated February 2, 2021), https://mutcd.fhwa.dot.gov/ (last visited March 2, 2021). ° DOT, Pedestrian Facilities, https://www.fdot.gov/roadway/bikeped/default.shtm (last visited March 2, 2021). For purposes of this bill analysis, a MBC is defined as a crosswalk which is at least 100 feet from an intersection. 10 2 Td. 'S U.S. Department of Transportation, Safety Effectiveness of the HAWK Pedestrian Crossing Treatment (July 2010), https://www. fhwa.dot.gov/publications/research/safety/10045/index.cfm (last visited March 2, 2021). STORAGE NAME: h1113.TIE.DOCX PAGE: 2 DATE: 3/12/2021 prepare to stop.'®° The beacon then displays a dual solid red light to drivers on the street and a walking person symbol to pedestrians on the crosswalk.'® At the conclusion of the walk phase, the beacon displays an alternating flashing red light, and pedestrians are shown an upraised hand symbol with a countdown display informing them of the time remaining to cross the street.” in July 2008, the MUTCD was updated via a memorandum’ to provide interim approval of RRFBs for optional use in limited circumstances. The interim approval allows for the usage of RRFBs as a warning beacon to supplement standard pedestrian crossing warning signs and markings at either a pedestrian or school crossing.'? The cost is approximately $10,000 to $15,000 for purchase and installation of two RRFB units (one on either side of a street).2° FHWA will grant interim approval for the optional use of an RRFB as a warning beacon in addition to standard pedestrian crossing or school crossing signs at crosswalks by any jurisdiction that submits a written request to FHWA’s Office of Transportation Operations.”' A state may request interim approval for all jurisdictions in that state.?? MBCs on the State Highway System, both controlled and uncontrolled, are typically justified and installed as a result of a traffic engineering or safety study. To meet and conform to the requirements of the MUTCD and DOT's standards, a fully signalized MBC must serve a minimum of 133 pedestrians in the peak hour.” The current estimated quantity of MBCs on the State Highway System include: Controlled MBCs*4 e Total MBCs with Traffic Signals = 7 e Total MBCs with Pedestrian Hybrid Beacon = 15 Uncontrolled MBCs?° e Total MBCs with warning signs and pavement markings only = 83 e Total MBCs with Yellow Circular Flashing Beacons = 5 e Total MBCs with Yellow RFRBs = 2317 Effect of Proposed Changes The bill creates the “Sophia Nelson Pedestrian Safety Act.” The bill provides that before the installation of a pedestrian crosswalk after October 1, 2021, on a public highway, street, or road which is located at any point other than an intersection with another public highway, street, or road, a traffic engineering study must be conducted by a Florida licensed professional engineer which recommends installation of such crosswalk. 18 See Memorandum of Interim Approval for Optional Use of Rectangular Rapid Flashing Beacons (IA-11) (July 16, 2008), https://mutcd. fhwa.dot.gov/resources/interim_approval/ial 1/fhwamemo.htm (last visited March 2, 2021). '9 U.S. Department of Transportation, Rectangular Rapid Flash Beacon (RRFB), https://safety.fhwa.dot.gov/intersection/conventional/unsignalized/tech_sum/fhwasa09009/ (last visited March 2, 2021). 20 Id. 21 See Memorandum of Interim Approval for Optional Use of Rectangular Rapid Flashing Beacons (IA-11) (July 16, 2008), https://mutcd. fhwa.dot.gov/resources/interim_approval/ial 1/fhwamemo.htm (last visited March 2, 2021). 3 Department of Transportation, Agency Analysis of 2021 House Bill 1113 (Version 2), p. 6. March 11, 2021. 4 Controlled MBCs contain either a traffic signal or pedestrian hybrid beacon. *5 Uncontrolled MBCs contain devices such as pedestrian activated flashing beacons, RRFBs, street signs and/or pavement markings only. 26 Department of Transportation, Agency Analysis of 2021 House Bill 1113 (Version 2), pp. 4-5. March 11, 2021. STORAGE NAME: h1113.TIE.DOCX PAGE: 3 DATE: 3/12/2021 The bill also provides that, notwithstanding any other provision of law to the contrary: e A pedestrian crosswalk on a public highway, street, or road that has a posted speed limit of 30 miles per hour or more, which is located at any point other than an intersection with another public highway, street, or road, must conform to the requirements of chapter 4D and 4E*’ of the most recent MUTCD and other applicable DOT standards, manuals, and specifications and must include a pedestrian-facing sign containing language stating duties applicable to a pedestrian. e A pedestrian crosswalk on a public highway, street, or road that has a posted speed limit of 29 miles per hour or less which is located at any point other than an intersection with another public highway, street, or road, must include a pedestrian-facing sign containing language stating duties applicable to a pedestrian. The bill requires traffic control signal devices and pedestrian control signals at MBCs with posted speed limits of 30 miles per hour or more to be coordinated with traffic control signal devices at intersections adjacent to the crosswalk. The traffic control signal devices at intersections adjacent to the crosswalk must be taken into consideration as provided in the most recent MUTCD and other applicable DOT specifications. The bill requires, by October 1, 2024, that the entity with jurisdiction over a public highway, street, or road with a MBC must ensure that such crosswalk is controlled by the required coordinated traffic control signal devices and pedestrian control signals. Alternatively, the entity may remove the crosswalk. The bill requires DOT, by October 1, 2022, to submit to the Federal Government a request for authorization to allow existing yellow RRFB traffic control devices to be replaced by red RRFB traffic control devices. If the federal government grants the request, the entity with jurisdiction over the MBC must replace all yellow RRFBs with red RRFBs within 12 months after the date of federal authorization. lf the Federal Government denies the request, the applicable entity must remove all yellow RRFBs at MBC by October 1, 2025. The entity with jurisdiction over the crosswalk may retrofit the crosswalk with legally acceptable equipment. The bill provides that the Legislature finds and declares that this act fulfills an important state interest. The bill has an effective date of October 1, 2021. B. SECTION DIRECTORY: Section 1 Provides a short title. Section 2 Creates s. 316.0756, F.S., relating to traffic control devices at crosswalks. Section 3 Provides a declaration of important state interest. Section 4 Provides an effective date of July 1, 2020. ll. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE GOVERNMENT: 1. Revenues: None. 27 Chapter 4D relates to traffic control signal features and chapter 4E relates to pedestrian control features. STORAGE NAME: h1113.TIE.DOCX PAGE: 4 DATE: 3/12/2021 2. Expenditures: DOT estimates a negative fiscal impact of approximately $14.9 million in capital costs and $159,000 in annual recurring costs. This impact is associated with a cross-walk inventory, site assessments and the purchase and installation of additional signal and pedestrian control equipment on the State Highway System.”® B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 1. Revenues: None. 2. Expenditures: The bill appears to have an indeterminate, but likely significant, negative fiscal impact on counties and municipalities associated with studying and retrofitting or removing MBCs.° C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: None. D. FISCAL COMMENTS: DOT’s efforts would be limited to MBCs on the State Highway System. Its 5-year work program is built and its transportation funding sources have been planned for use. Moving DOT’s resources to comply with the bill may result in DOT deferring or deleting other priority projects.*° lil. COMMENTS A. CONSTITUTIONAL ISSUES: 1. Applicability of Municipality/County Mandates Provision: The county/municipality mandates provision of Art. VII, s. 18 of the Florida Constitution may apply because this bill requires counties and municipalities to spend funds relating to specified traffic and pedestrian signals; however, an exception may apply because similarly situated persons are all required to comply; and the bill includes a Legislative determination that it fulfills an important state interest. 2. Other: None. B. RULE-MAKING AUTHORITY: The bill does not provide a grant of rulemaking authority, nor does it require rulemaking. C. DRAFTING ISSUES OR OTHER COMMENTS: According to DOT, with the removal of MBCs, there would be significantly fewer locations for pedestrians to cross state roads, since they would only be able to legally cross at intersections. There may also be pedestrian delay associated with the required coordination with traffic signals. Additionally, 28 Department of Transportation, Agency Analysis of 2021 House Bill 1113 (Version 2), pp. 6-7. March 11, 2021, 2° Department of Transportation, Agency Analysis of 2021 House Bill 1113, p. 6. March 9, 2021 30 Id. STORAGE NAME: h1113.TIE.DOCX PAGE: 5 DATE: 3/12/2021 removing MBCs may increase traffic crashes involving pedestrians in those areas, but these crashes may decrease in places where uncontrolled MBCs are replaced with a traffic signal.*" IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES 31 Department of Transportation, Agency Analysis of 2021 House Bill 1113 (Version 2), p. 6. March 11, 2021. STORAGE NAME: h1113.TIE.DOCX PAGE: 6 DATE: 3/12/2021 FLORIDA H OU S E O F REP RES EN TAT IV E S HB 1113 2021 1 A bill to be entitled 2 An act relating to traffic and pedestrian safety; 3 providing a short title; creating s. 316.0756, F.S.; 4 requiring a traffic engineering study to be conducted 5 which recommends installation of a specified 6 pedestrian crosswalk before such installation occurs; 7 requiring a pedestrian crosswalk on a public highway, 8 street, or road which is located at any point other 9 than at an intersection with another public highway, 10 street, or road to conform to specified requirements; 11 providing coordination requirements for certain 12 devices and signals; requiring that traffic control 13 Signal devices at adjacent intersections be taken into 14 consideration; requiring, by a specified date, the £5 entity with jurisdiction over a public highway, 16 street, or road with a certain pedestrian crosswalk to 17 ensure that the crosswalk conforms to specified 18 requirements; authorizing such entity, alternatively, 19 to remove any such crosswalk; requiring, by a 20 specified date, the Department of Transportation to 21 submit a certain request for authorization to the Zz, Federal Government; requiring applicable entities to 28 replace or remove specified traffic control devices 24 within a specified timeframe after the date of federal 29) authorization or denial, as applicable; authorizing Page 1 of 4 CODING: Words stricken are deletions; words underlined are additions. hb1113-00 FLORIODA HO US E O F REP RES EN TATIV ES HB 1113 2021 26 retrofitting of crosswalks with legally acceptable 27 equipment; providing a declaration of important state 28 interest; providing an effective date. 29 30| Be It Enacted by the Legislature of the State of Florida: 31 32 Section 1. This act may be cited as the "Sophia Nelson 33) Pedestrian Safety Act." 34 Section 2. Section 316.0756, Florida Statutes, is created 35} to read: 36 316.0756 Traffic control signal devices and pedestrian 37] control signals at crosswalks other than at intersections.— 38 (1) (a) Before the installation of a pedestrian crosswalk 39| after October 1, 2021, on a public highway, street, or road 40] which is located at any point other than at an intersection with 41] another public highway, street, or road, a traffic engineering 42} study must be conducted by a Florida licensed professional 43} engineer which recommends the installation of such crosswalk. 44 (bo) Notwithstanding any law to the contrary: 45 1. A pedestrian crosswalk on a public highway, street, or 46] road that has a posted speed limit of 30 miles per hour or more 47| which is located at any point other than at an intersection with 48} another public highway, street, or road must conform to the 49) requirements of chapters 4D and 4E of the most recent Manual on 50} Uniform Traffic Control Devices and other applicable Department Page 2 of 4 CODING: Words stricken are deletions; words underlined are additions. hb1113-00 FLORIODA H O US E O F REP RES EN TAT IVE §S HB 1113 2021 51] of Transportation standards, manuals, and specifications and 52] must include a pedestrian-facing sign containing language 53} stating duties applicable to a pedestrian, as provided in this 54 chapter. 55 2. A pedestrian crosswalk on a public highway, street, or 56} road that has a posted speed limit of 29 miles per hour or less 57| which is located at any point other than at an intersection with 58] another public highway, street, or road must include a 59} pedestrian-facing sign containing language stating duties 60} applicable to a pedestrian, as provided in this chapter. 61 (c) Traffic control signal devices and pedestrian control 62 signals at crosswalk locations described in subparagraph (b)1. 63} must be coordinated with traffic control signal devices at 64] intersections adjacent to the crosswalk, and such traffic 65] control signal devices at intersections adjacent to the 66| crosswalk must be taken into consideration as provided in the 67 most recent Manual on Uniform Traffic Control Devices and other 68) applicable Department of Transportation specifications. 69 (2) By October 1, 2024, the entity with jurisdiction over 70| a public highway, street, or road with a crosswalk described in 71 subsection (1) which is in existence on October 1, 2021, shall 72| ensure that such crosswalk is controlled by coordinated traffic 73) control signal devices and pedestrian control signals as 74) required under subsection (1). Alternatively, the entity with 75| jurisdiction may remove any such existing crosswalk. Page 3 of 4 CODING: Words stricken are deletions; words underlined are additions. hb1113-00 FLOR I!I DA H O US E O F REP RES EN TATIV E §$ HB 1113 2021 716 (3) By October 1, 2022, the Department of Transportation 77 shall submit to the Federal Government a request for 78] authorization to allow yellow rectangular rapid flashing beacon 79] traffic control devices to be replaced by red rectangular rapid 80} flashing beacon traffic control devices. If the Federal 81] Government grants the request, the applicable entity must 82] replace all yellow rectangular rapid flashing beacon traffic 83 control devices at each crosswalk described in subsection (1) or 84} subsection (2) with red rectangular rapid flashing beacon 85 traffic control devices within 12 months after the date of 86 federal authorization. If the Federal Government denies the 87] request, the applicable entity must remove all yellow 88] rectangular rapid flashing beacon traffic control devices from 89} each crosswalk described in subsection (1) or subsection (2) by 90] October 1, 2025. The entity with jurisdiction over such 91} crosswalk may retrofit the crosswalk with legally acceptable 93 Section 3. The Legislature finds and declares that this 94) act fulfills an important state interest. 95 Section 4. This act shall take effect October 1, 2021. Page 4 of 4 CODING: Words stricken are deletions; words underlined are additions. HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: HB 1311 Public Meetings/Public Service Commission SPONSOR(S): Payne TIED BILLS: IDEN./SIM. BILLS: REFERENCE ACTION ANALYST STAFF DIRECTOR or BUDGET/POLICY CHIEF 1) Tourism, Infrastructure & Energy Subcommittee Keating CIC Keating Ch 2) Government Operations Subcommittee 3) Commerce Committee SUMMARY ANALYSIS Current law provides public record exemptions for proprietary confidential business information provided to and held by the Public Service Commission (PSC). The PSC has established practices and procedures to ensure that this information is protected from disclosure during formal evidentiary hearings that must be held in compliance with the Sunshine Law. Rarely, however, the PSC may find that a case is so heavily intertwined with confidential information, or the volume of that information so substantial, that it cannot afford the parties a full and fair public hearing and also protect the confidential information. In these cases, it may forward the matter to the Division of Administrative Hearings to hold a closed hearing, as the PSC lacks a public meeting exemption to close any part of its own hearings. The bill creates a public meeting exemption for any portion of a formal administrative hearing held by the PSC which the PSC finds cannot be “fully and fairly conducted” without necessarily revealing proprietary confidential business information that is exempt from disclosure as a public record. It also creates a public record exemption for those portions of the hearing transcript that contain such information. Each redacted portion of the transcript remains exempt from disclosure as a public record unless a court of competent jurisdiction determines that the redacted portion of the transcript is not restricted to the discussion of data and information made exempt by this section. The bill provides that this public meeting and public record exemption is subject to the Open Government Sunset Review Act and will stand repealed on October 2, 2026, unless reviewed and saved from repeal through reenactment by the Legislature. It also provides a statement of public necessity as required by the Florida Constitution. The bill does not appear to have a fiscal impact on state or local governments. The bill provides an effective date of upon becoming law. Article |, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present and voting for final passage of a newly created or expanded public meeting or public record exemption. The bill creates a new public meeting and public record exemption; thus, it requires a two- thirds vote for final passage. This document does not reflect the intent or official position of the bill sponsor or House of Representatives. STORAGE NAME: h1311.TIE.DOCX DATE: 3/12/2021 FULL ANALYSIS |. SUBSTANTIVE ANALYSIS A. EFFECT OF PROPOSED CHANGES: Present Situation Public Records Article |, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to government records. This section guarantees every person a right to inspect or copy any public record of the legislative, executive, and judicial branches of government. The Legislature, however, may provide by general law for the exemption of records from the requirements of Article |, section 24(a).' The general law must state with specificity the public necessity justifying the exemption? and must be no more broad than necessary to accomplish its purpose.° Public Meetings Article |, section 24(b) of the Florida Constitution sets forth the state’s public policy regarding access to government meetings. The section requires that all meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, be open and noticed to the public. Public policy regarding access to government meetings also is addressed in the Florida Statutes. Section 286.011, F.S., known as the “Government in the Sunshine Law’ or “Sunshine Law,” further requires that all meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, at which official acts are to be taken be open to the public at all times.* The board or commission must provide reasonable notice of all public meetings.*° Public meetings may not be held at any location that discriminates on the basis of sex, age, race, creed, color, origin, or economic status or that operates in a manner that unreasonably restricts the public’s access to the facility.6 Minutes of a public meeting must be promptly recorded and open to public inspection.’ The Legislature may provide by general law for the exemption of meetings from the requirements of article |, section 24(b) of the Florida Constitution. The general law must state with specificity the public necessity justifying the exemption? and must be no more broad than necessary to accomplish its purpose. '° Open Government Sunset Review The Open Government Sunset Review Act" provides that a public meeting and public record exemption may be created or maintained only if it serves an identifiable public purpose. In addition, it may be no more broad than necessary to meet one of the following purposes: e Allow the state or its political subdivisions to effectively and efficiently administer a governmental program, which administration would be significantly impaired without the exemption. ' FLA. Const. art. I, s. 24(c). ? This portion of a public record exemption is commonly referred to as a “public necessity statement.” 3 FLA. CONST. art. I, s. 24(c). © S. 286.011(6), F.S. 7S. 286.011(2), F.S. 8 FLA. CONST. art. I, s. 24(c). ° This portion of a public meeting exemption is commonly referred to as a “public necessity statement.” 10 FLA, CONST. art. I, s. 24(c). "§. 119.15, F.S. STORAGE NAME: h1311.TIE.DOCX PAGE: 2 DATE: 3/12/2021 e Protect sensitive personal information that, if released, would be defamatory or would jeopardize an individual’s safety; however, only the identity of an individual may be exempted under this provision. e Protect trade or business secrets. ' The Act requires the automatic repeal of a public meeting or public record exemption on October 2nd of the fifth year after its creation or substantial anendment, unless the Legislature reenacts the exemption."? Proceedings before the Public Service Commission The Public Service Commission (PSC) is an arm of the legislative branch of government.'* The role of the PSC is to ensure that Florida's consumers receive some of their most essential services — electric, natural gas, telephone, water, and wastewater — in a safe, affordable, and reliable manner. In doing so, the PSC exercises regulatory authority over utilities in one or more of three key areas: rate base/economic regulation; competitive market oversight; and monitoring of safety, reliability, and service issues.'° The PSC possesses extensive expertise in the unique legal and policy considerations applicable to Florida’s regulated utilities and their ratepayers and employs this expertise when it conducts administrative hearings and independently weighs the evidence presented."® Each meeting, workshop, hearing, or other proceeding attended by two or more PSC commissioners, and each proceeding where a decision that concerns the rights or obligations of any person is made, must be streamed live on the Internet.'” Further, a recorded copy of each such meeting, workshop, hearing, or proceeding must be made available on the commission's website." Although it is authorized to refer matters to the Division of Administrative Hearings (DOAH) for formal evidentiary hearings and fact finding, '? the PSC is unique among state agencies in that it conducts most of its own formal evidentiary hearings.”° In these hearings, commissioners rule on procedural matters, establish evidence of record, weigh the record evidence, and apply the law to the facts of the case. Many of these hearings involve some amount of proprietary confidential business information that is exempted by statute from public disclosure,”' as described below. All formal administrative hearings conducted by the PSC are noticed and open to the public, consistent with the Sunshine Law. The PSC has established practices and procedures that allow these hearings to be conducted in a manner that complies with the Sunshine Law and protects proprietary confidential business information from disclosure. In these hearings, confidential material typically plays a minor role in the resolution of any particular issue, and the parties avoid public disclosure of this material by stipulating to certain matters and keeping discussions of confidential matters, which generally occur during cross examination, minimal and without mention of critical details. Recently, however, the PSC has found certain dockets where fact-finding on one or more issues is so intertwined with confidential information, and the volume of that information is so substantial, that it cannot afford the parties a full and fair hearing in the public and also protect the confidential information. Public Record Exemptions for Proprietary Confidential Business Information held by the PSC Current law provides that any records received by the PSC which are shown and found by the PSC to be proprietary confidential business information must be kept confidential and are exempt from public 12S. 119.15(6)(b), F.S. 13. 119.15(3), FS. 14. 350.001, F.S. 'S Florida Public Service Commission, http://www.psc.state.fl.us/ (last visited March 11, 2021). ‘6 Florida Public Service Commission, Agency Analysis of 2021 House Bill 1311, p. 1 (March 4, 2021). '7 §. 350.01(8), F.S. 18 Id. '9 Ss, 350.125 and 120.569(2), F.S. 20 FPSC, supra note 17, at 1. These formal evidentiary hearings consist of hearings conducted pursuant to ss. 120.569 and 120.57, F.S. 22 FPSC, supra note 17, at 1. STORAGE NAME: h1311.TIE.DOCX PAGE: 3 DATE: 3/12/2021 disclosure.” For these purposes, the law defines proprietary confidential business information as “information, regardless of form or characteristics, which is owned or controlled by the person or company, is intended to be and is treated by the person or company as private in that the disclosure of the information would cause harm to the ratepayers or the person’s or company’s business operations, and has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or administrative body, or private agreement that provides that the information will not be released to the public.” This information includes, but is not limited to: e Trade secrets. e Internal auditing controls and reports of internal auditors. e Security measures, systems, or procedures. e Information concerning bids or other contractual data, the disclosure of which would impair the efforts of the public utility or its affiliates to contract for goods or services on favorable terms. e Information relating to competitive interests, the disclosure of which would impair the competitive business of the provider of the information. e Employee personnel information unrelated to compensation, duties, qualifications, or Any PSC finding that records contain proprietary confidential business information is effective for a period set by the PSC not to exceed 18 months, unless the PSC finds, for good cause, that the protection from disclosure should be for a specified longer period.?° Effect of the Bill The bill creates a public meeting exemption for any portion of a formal administrative hearing held by the PSC which the PSC finds cannot be “fully and fairly conducted” without necessarily revealing proprietary confidential business information that is exempt from disclosure as a public record as described above. The bill requires that all portions of the hearing, including any portion exempted by the bill, must be recorded and transcribed by a certified court reporter. The bill further provides that, not later than 21 days after the hearing transcript is filed with the PSC clerk, each party making a claim that one or more portions of the transcript contains confidential information that is exempt from disclosure as a public record shall provide the PSC clerk redactions of that information and a request for confidential treatment. Failure to timely file redactions and a request for confidential treatment constitutes a waiver of any continued claim of confidentiality only to that portion of the transcript. The bill requires the PSC clerk to prepare a transcript redacting all information for which a claim has been approved by the PSC through this process. The bill provides that this redacted transcript will be made part of the public record at the conclusion of the underlying proceeding. The redacted portions of the transcript remain exempt from disclosure as public records unless a court of competent jurisdiction, following an in-camera review, determines that the hearing or portion thereof documented in the portion of the transcript that was redacted was not restricted to the discussion of data and information made exempt by this section. In the event of such a judicial determination, only the redacted portion of the transcript which reveals nonexempt data and information may be disclosed to the public. The bill provides that the PSC is not required to live-stream or make a recording available on its website for any portion of a hearing that is exempted from the Sunshine Law under these provisions. The bill provides a statement of public necessity as required by the Florida Constitution, which provides the following legislative findings: 23 See ss. 366.093, 367.156, and 368.108, F.S. Records obtained under ch. 364 must be kept confidential by the PSC and are exempt from public disclosure upon a claim by the person providing the records. S. 364.183, F.S. 24 See ss. 364.183, 366.093, 367.156, and 368.108, F.S. 25 Id. STORAGE NAME: h1311.TIE.DOCX PAGE: 4 DATE: 3/12/2021 The PSC is charged by statute with establishing just, fair, and compensatory utility rates, and the fact-finding role of the PSC is integral in its decision making, as all PSC decisions must be supported by a record of competent, substantial evidence. Under certain circumstances, the PSC must be able to evaluate and discuss proprietary confidential business information in order to make a determination in the public interest, and parties must be able to conduct cross-examination on such information in formal evidentiary proceedings. The PSC and parties to PSC proceedings are constrained from asking questions about essential proprietary confidential business information important to the outcome of a case. It is a public necessity that those portions of formal administrative hearings before the PSC at which proprietary confidential business information is discussed, and the associated portions of hearing transcripts, be made exempt from the Sunshine Law to allow parties to conduct cross- examination on such information and the PSC to evaluate the information and make a determination in the public interest. In accordance with s. 119.15, F.S., the bill provides that these exemptions are subject to the Open Government Sunset Review Act and will stand repealed on October 2, 2026, unless reviewed and saved from repeal through reenactment by the Legislature. B. SECTION DIRECTORY: Section 1 Amends s. 286.0113, F.S., relating to general exemptions from public meetings. Section 2 Amends s. 350.01, F.S., relating to the Florida Public Service Commission; terms of commissioners; vacancies; election and duties of chair; quorum; proceedings. Section 3 Provides a statement of public necessity. Section 4 Provides an effective date. ll. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE GOVERNMENT: 1. Revenues: None. 2. Expenditures: None. B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 1. Revenues: None. 2. Expenditures: None. C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: None. STORAGE NAME: h1311.TIE.DOCX PAGE: 5 DATE: 3/12/2021 D. FISCAL COMMENTS: None. lil. COMMENTS A. CONSTITUTIONAL ISSUES: 1. Applicability of Municipality/County Mandates Provision: Not applicable. The bill does not appear to require counties or municipalities to take an action requiring the expenditure of funds, reduce the authority that counties or municipalities have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with counties or municipalities 2. Other: Vote Requirement Article |, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present and voting for final passage of a newly created public meeting or public record exemption. The bill creates a new public meeting and public record exemption; thus, it requires a two-thirds vote for final passage. Public Necessity Statement Article |, section 24(c) of the Florida Constitution requires a public necessity statement for a newly created or expanded public meeting or public record exemption. The bill creates a new public meeting and public record exemption and includes a statement supporting the public necessity for these exemptions. Breadth of Exemption Article I, section 24(c) of the Florida Constitution requires a newly created public meeting or public record exemption to be no broader than necessary to accomplish the stated purpose of the law. The bill creates a public meeting exemption for only the portion of a formal administrative hearing held by the PSC that would reveal information specifically identified as confidential proprietary business information exempt from disclosure under existing public record exemptions in ss. 364.183, 366.093, 367.156, and 368.108, F.S. and creates a public record exemption for only those portions of the associated hearing transcripts. As such, these exemptions do not appear to be in conflict with the constitutional requirement that they be no broader than necessary to accomplish their purpose. B. RULE-MAKING AUTHORITY: None. C. DRAFTING ISSUES OR OTHER COMMENTS: In order to exempt any portion of a formal administrative hearing from the Sunshine Law, the bill requires a finding by the PSC that that portion of the hearing cannot be “fully and fairly conducted” without necessarily revealing proprietary confidential business information. This additional finding may be unnecessary to accomplish the purpose of the bill and could create an avenue for additional challenges. IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES STORAGE NAME: h1311.TIE.DOCX PAGE: 6 DATE: 3/12/2021 FLORIODA H O U S E O F REP RES EN TAT IVE S HB 1311 2021 1 A bill to be entitled 2 An act relating to public meetings; amending s. 3 286.0113, F.S.; providing an exemption from public 4 meetings requirements for portions of hearings before 5 the Public Service Commission which would reveal 6 certain proprietary confidential business information; 7 requiring a certified court reporter to record the 8 hearing; specifying that only the redacted version of 9 the transcript is subject to public records 10 requirements; requiring a party claiming that a Ld portion of a transcript contains confidential 12 information to provide redactions and a request for 13 confidential treatment to the commission clerk within 14 a certain period in order to maintain confidentiality; 15 providing that the redacted transcript prepared by the 16 clerk shall be made a part of the public record at a 17 certain time unless a certain judicial determination 18 is made; providing for future legislative review and 19 repeal of the exemption; amending s. 350.01, F.S.; 20 providing an exception for a hearing or portion of a 21 hearing before the Public Service Commission which is 22 exempt from public meetings requirements from a 23 requirement that such hearing be streamed live on the 24 Internet and that a recording of such hearing be made 20 available on a certain website; providing a statement Page 1 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 FLORIODA HO US E O F REPRESENTATIVE 8S HB 1311 2021 26 of public necessity; providing an effective date. 27 28| Be It Enacted by the Legislature of the State of Florida: 29 30 Section 1. Subsection (4) of section 286.0113, Florida 32 Statutes, is renumbered as subsection (5) and a new subsection 32 (4) is added to that section, to read: 33 286.0113 General exemptions from public meetings.— 34 (4) (a) Any portion of a hearing before the Florida Public 35 Service Commission under ss. 120.569 and 120.57 which the 36] commission finds cannot be fully and fairly conducted without 37] necessarily revealing proprietary confidential business 38] information that is exempt from _s. 119.07(1) pursuant to a claim 39} or commission finding made under s. 364.183 or pursuant to a 40| pending request or commission finding made under s. 366.093, s. 41 367.156, or s. 368.108, is exempt from s. 286.011 and s. 24(b), 42 Art. I of the State Constitution. 43 (bo) The entire hearing, including any portion made exempt 44 under this subsection, shall be recorded by a certified court 45) reporter. Only the redacted version of the transcript prepared 46] as provided in paragraph (d) shall be subject to disclosure 47 under s. 119.07(1) and s. 24(a), Art. I of the State 48 Constitution. 49 (c) Not later than 21 days after the transcript is filed 50} with the commission clerk, each party making a claim that one or Page 2 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 FLORIDA HOUSE O F R E—EP RES EN TATIV ES HB 1311 2021 51} more portions of the transcript contains confidential 52] information that is exempt from disclosure under s. 119.07(1) 53] ands. 24(a), Art. I of the State Constitution shall provide to 54 the commission clerk redactions of that information and a 55} request for confidential treatment. Failure to timely file such 56} redactions and request shall constitute a waiver of any 57} continued claim of confidentiality only to that portion of the 58] transcript. 59. (d) The commission clerk shall prepare a transcript 60} redacting all information for which a claim under paragraph (c) 61); has been approved by the commission. This redacted transcript 62 shall be made part of the public record at the conclusion of the 63] underlying proceeding. The redacted portions of the transcript 64} remain exempt from disclosure under s. 119.07(1) and s. 24(a), 65] Art. I of the State Constitution unless a court of competent 66] jurisdiction, following an in-camera review, determines that the 67] hearing or portion thereof documented in the portion of the 68] transcript that was redacted was not restricted to the 69} discussion of data and information made exempt by this section. 70| In the event of such a judicial determination, only the redacted 71} portion of the transcript which reveals nonexempt data and 72| information may be disclosed to a third party. 73 (e) This subsection is subject to the Open Government 74 Sunset Review Act in accordance with s. 119.15 and shall stand 75 repealed on October 2, 2026, unless reviewed and saved from Page 3 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 FLORIODA H O US E O F REP RES EN TA TIVE S HB 1311 2021 76| repeal through reenactment by the Legislature. Til Section 2. Subsection (8) of section 350.01, Florida 78 Statutes, is amended to read: 719 350.01 Florida Public Service Commission; terms of 80] commissioners; vacancies; election and duties of chair; quorum; 82 (8) Each meeting, including each internal affairs meeting, 83] workshop, hearing, or other proceeding attended by two or more 84 commissioners, and each such meeting, workshop, hearing, or 85} other proceeding where a decision that concerns the rights or 86] obligations of any person is made, shall be streamed live on the 87} Internet, and a recorded copy of the meeting, workshop, hearing, 88] or proceeding shall be made available on the commission's 89] website, except for any hearing or portion of a hearing before 90 the Florida Public Service Commission under ss. 120.569 and 91) 120.57 which, pursuant to s. 286.011(4), is exempt from s. 92 286.011 and s. 24(b), Art. I of the State Constitution. 93 Section 3. (1) The Legislature finds that it is a public 94) necessity that those portions of hearings of the Florida Public 95 Service Commission under ss. 120.569 and 120.57, Florida 96] Statutes, at which proprietary confidential business information 97 is discussed be made exempt from s. 286.011, Florida Statutes, 98 and s. 24(b), Article I of the State Constitution. As used in 99| this section, “proprietary confidential business information" 100) means information that is exempt from s. 119.07(1), Florida Page 4 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 FLORIODA H O US E O F REP RES EN TAT! VES HB 1311 2021 101] Statutes, pursuant to a claim or commission finding made under 102 s. 364.183, Florida Statutes, or pursuant to a pending request 103 or commission finding made under s. 366.093, s. 367.156, or s. 104} 368.108, Florida Statutes, and that is necessary for the 105 commission to discuss in order to evaluate and make a 106| determination in the public interest. 107 (2) The Legislature finds that the commission and parties 108] to commission proceedings are constrained from asking questions 109] about essential proprietary confidential business information 110] important to the outcome of a case. Pursuant to its legislative 111] directive under chapters 364, 366, 367, and 368, Florida 112 Statutes, the commission is the tribunal charged with 113] establishing just, fair, and compensatory utility rates. As 114} such, the commission has the authority to adjudicate all matters 115] within its jurisdiction, and its administrative hearings are 116] conducted in compliance with chapter 120, Florida Statutes. The 117] fact-finding role of the commission is integral in its 118] decisionmaking, and all commission decisions must be supported 119] by record competent, substantial evidence. Accordingly, under 120 certain circumstances, the commission must be able to evaluate 121) and discuss proprietary confidential business information in 122} order to make a determination in the public interest. In 123] addition, parties must be permitted to conduct cross-examination 124] when testimony is taken or documents are made a part of the 125 record under s. 120.569(2) (3), Florida Statutes. Page 5 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 FLORIODA HO US E O F REP RES EN TATIV ES HB 1311 2021 126 (3) The Legislature finds that the exposure of proprietary 127] confidential business information could significantly impair the 128] ability of utilities regulated by the Public Service Commission 129} to fairly compete within the marketplace by revealing 130} information that would typically be considered proprietary, 131] confidential, or otherwise private. Furthermore, such exposure 132} could harm the businesses with which such utilities contract by 133] disclosing such businesses' proprietary or confidential 134] information and make it less likely for such businesses to do 135] business with regulated utilities in the future. The Legislature 136) further finds that the exposure of proprietary confidential 137| business information would cause harm to the company's 138] ratepayers or business operations. Given such harms, the 139} exposure of this information could negatively impact customers 140| of regulated utilities and result in higher utility prices or 141] lower quality of service overall. 142 (4) The Legislature finds that the public and private harm 143} in disclosing proprietary confidential business information made 144} exempt by this act outweighs any public benefit derived from the 145 disclosure of such information. 146 (5) Therefore, the Legislature finds that it is a public 147] necessity to make those portions of hearings of the Florida 148 Public Service Commission under ss. 120.569 and 120.57, Florida 149} Statutes, at which proprietary confidential business information 150; is discussed exempt from s. 286.011, Florida Statutes, and s. Page 6 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 FLORIODA HOU S E O F REP RES EN TATIVE S HB 1311 2021 151] 24(b), Article I of the State Constitution. 152 Section 4. This act shall take effect upon becoming a law. Page 7 of 7 CODING: Words stricken are deletions; words underlined are additions. hb1311-00 HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: HB 1567 —_ Utility and Communication Service Poles SPONSOR(S): DiCeglie and others TIED BILLS: IDEN./SIM. BILLS: SB 1944 REFERENCE ACTION ANALYST STAFF DIRECTOR or BUDGET/POLICY CHIEF 1) Tourism, Infrastructure & Energy Subcommittee Willson MW Keating Ce 2) Infrastructure & Tourism Appropriations Subcommittee 3) Commerce Committee SUMMARY ANALYSIS “Pole attachment” refers to the process by which telecommunications companies can collocate telecommunications infrastructure on existing electric utility poles. Telecommunications companies and electric utilities have an established system of utility poles to carry the wires that move their resources from provider to the consumer. However, telecommunications companies typically own relatively few poles so they often lease space from electric utility pole owners. Historically, rates, terms, and conditions for attachments to municipal and cooperative utility poles have been established through private contracts Federal law broadly preempts the regulation of telecommunications services, including pole attachments. However, federal law allows states to exercise reverse preemption over the Federal Communications Commission's (FCC) jurisdiction over pole attachments. The bill requires the Florida Public Service Commission (PSC) to regulate pole attachments in Florida, taking over the role currently performed by the FCC. The bill authorizes the PSC to hear and resolve complaints concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access relative to pole attachments. The bill provides that FCC precedent is not binding upon the PSC. Additionally, the bill specifies that PSC, upon the request of a party to a complaint proceeding pending before the FCC, must assume jurisdiction over the matter if it is not yet subject to a final order of the FCC at the time of the request. The bill defines “redundant pole” and requires that attaching entities remove their pole attachments from a redundant pole within 90 days of a written request by the pole owner. Under certain circumstances, the pole owner may transfer or relocate the pole attachment to a new pole at the non-compliant attaching entity's expense, unless the pole attachments are owned by an electric utility. The bill requires the PSC to regulate the maintenance of certain telecommunications infrastructure and requires telecommunications companies to create storm reserve funds overseen by the PSC. The bill requires the PSC to impose monetary penalties upon any entity that violates the provisions of the bill. Additionally, the bill authorizes the PSC to order the removal or transfer of pole attachments by noncompliant attaching entities, upon petition by a pole owner, and requires the PSC to impose monetary penalties. Revenues collected from these penalties must be used by the PSC to provide broadband infrastructure grants. The bill requires the PSC to adopt rules which implement the bill by October 1, 2021, including rules providing for the sequential removal of all pole attachments from redundant poles and to establish monetary penalties. The bill does not impact state or local government revenues or local government expenditures. However, the bill is likely to have a significant negative impact on state government expenditures. See Fiscal Analysis. The bill takes effect upon becoming law. This document does not reflect the intent or official position of the bill sponsor or House of Representatives. STORAGE NAME: h1567.TIE.DOCX DATE: 3/14/2021 FULL ANALYSIS |. SUBSTANTIVE ANALYSIS A. EFFECT OF PROPOSED CHANGES: Current Situation Regulation of Pole Attachments First deployed in America in 1844 to extend telegraph service, utility poles provide the scaffolding for the technology of the twenty-first century. In the mid-nineteenth and early twentieth centuries, many states adopted laws granting rights-of-way (ROW) to construct utility poles, wires, and facilities to transmit electricity and communications signals. First telegraph, then telephone, electricity, cable, wireless, and Internet Service Providers have sought to attach facilities to wooden, and later steel or composite, utility poles. ' The term pole attachment refers to the process by which communications companies can collocate communications infrastructure on existing electric utility poles. This reduces the number of poles that must be built to accommodate utility services, while reducing costs to users of both services by allowing providers to share costs. Rules governing pole attachments seek to balance the desire to maximize value for users of both electric and communications services with concerns unique to electric utility poles, such as safety and reliability. Pole attachments, originally by mutual agreement but later by federal statute and regulation, provide non-pole-owning cable and telecommunication service providers (e.g. cable TV, local exchange carriers) with access to a utility's distribution poles, conduits, and ROW for: e Installing fiber, coaxial cable or wires, and other equipment; e Building an interconnected network; and e Reaching customers.* The space requested for a pole attachment is typically one foot. Congress began regulating pole attachments‘ in 1978.5 The Telecommunications Act of 1996° expanded pole attachment rights to telecommunications’ carriers. The Act requires utilities® to provide nondiscriminatory access to cable television systems and telecommunications carriers. The Act also authorizes the Federal Communications Commission? (FCC) to regulate the rates, terms, and conditions of attachments by cable television operators to the poles, conduit, or ROW owned or ' Catherine J.K. Sandoval, Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks, 69 Cath. U. L. Rev. 473, 474-75 (2020). 2 American Public Power Association, /ssue Brief: Preserving the Municipal Exemption from Federal Pole Attachment Regulations (Jan. 2021) https://www.publicpower.org/policy/preserving-municipal-exemption-federal-pole-altachment-regulations (last visited Mar. 13, 2021). 3 Edison Electric Institute, Pole Attachments 101, https://eefsapi.fcc.gov/file/7020708245.pdf (last visited Mar. 13, 2021). 447 U.S.C. § 224(a)(4), defines ‘‘pole attachment”’ as “any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.” 5 The Pole Attachment Act of 1978 granted utility pole access to cable companies, and was designed to promote utility competition and service to the public. Communications Act Amendments of 1978, Pub. L. No. 95-234. (Feb. 21, 1978). © Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996). 7 The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received. 47 U.S.C. § 153(50). 847 U.S.C. § 224(a)(1), defines ‘‘utility’’ as “any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State.” ° The FCC regulates interstate and international communications by radio, television, wire, satellite and cable in all SO states, the District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the FCC is the United States’ primary authority for communications law, regulation and technological innovation. FCC, What We Do, https://www.fec.gov/about-fee/what-we-do (last visited Mar 13, 2021). STORAGE NAME: h1567.TIE.DOCX PAGE: 2 DATE: 3/14/2021 controlled by utilities in the absence of parallel state regulation.!° The Legislation withheld from FCC jurisdiction the authority to regulate attachments where the utility is a railroad, cooperatively organized, or owned by a government entity." The 1996 Act permits utilities to deny access where there is insufficient capacity and for reasons of safety, reliability or generally applicable engineering purposes. In addition to establishing a right of access, the Act provides a rate methodology for “attachments used by telecommunications carriers to provide telecommunications services”’? in addition to the existing methodology for attachments “used by a cable television system solely to provide cable service.'° Federal law broadly preempts the regulation of telecommunications services.'* However, federal law allows states to exercise reverse preemption over the FCC’s jurisdiction of communications infrastructure access, '® meaning that once a state adopts its own utility pole access rules, the FCC loses jurisdiction over pole attachments to the extent that the state regulates such matters. '® Federal law specifically recognizes the authority of state and local governments to manage the public ROW, and to require fair and reasonable compensation for the use of such ROW." The law also provides that states may adopt, on a competitively neutral basis, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.”"® Pursuant to section 224(c) of the Telecommunications Act of 199619, each state that regulates the rates, terms, and conditions for pole attachments must certify to the FCC that: e It regulates such rates, terms, and conditions; and e Inso regulating such rates, terms, and conditions, the state has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services provided by the pole owners. Furthermore, a state is not considered to regulate the rates, terms, and conditions for pole attachments: e Unless the state has issued and made effective rules and regulations implementing the state's regulatory authority over pole attachments; and e With respect to any individual matter, unless the state takes final action on a complaint regarding such matter: o Within 180 days after the complaint is filed with the state, or o Within the applicable period prescribed for such final action in such rules and regulations of the state, if the prescribed period does not extend beyond 360 days after the filing of such complaint. Regulation of Utility Infrastructure in Florida The Florida Public Service Commission (“PSC” or “commission”) is an arm of the legislative branch of government.”° The role of the PSC is to ensure that Florida's consumers receive some of their most essential services — electric, natural gas, telephone, water, and wastewater — in a safe, affordable, and 047 U.S.C. § 224, " In the Matter of Implementation of Section 224 of the Act A Nat'l Broadband Plan for Our Future, 26 F.C.C. Red. 5240, 5245-46 (2011) 2ATUS.C. § 224(e). '3.47 U.S.C. § 224(d). '4“NIo State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a). 'S 47 U.S.C. § 224(c)(1). '6 Catherine J.K. Sandoval, Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks, 69 Cath. U. L. Rev. 473, 486-87 (2020). '747 U.S.C. § 253(c). 847 U.S.C. § 253, 20 5, 350.001, F.S. STORAGE NAME: h1567.TIE.DOCX PAGE: 3 DATE: 3/14/2021 reliable manner.2' In doing so, the PSC exercises regulatory authority over utilities in one or more of three key areas: rate base/economic regulation; competitive market oversight; and monitoring of safety, reliability, and service issues.2? The PSC monitors the safety and reliability of the electric power grid@* and may order the addition or repair of infrastructure as necessary.”* Additionally, the PSC has broad jurisdiction over the rates and service of investor-owned electric utilities (IOUs) in Florida. However, the PSC does not regulate pole attachments or provide construction and reliability standards relating to pole attachments. Additionally, the PSC generally does not regulate providers of communications services,”° cable television operators, local exchange carriers, or streetlight fixtures. Telecommunications carriers in Florida are subject to limited regulation under ch. 364, F.S. During the 2011 legislative session House Bill CS/CS/HB 1231, the “Regulatory Reform Act” (Act), was passed and signed into law by the Governor, effective July 1, 2011. Under the Act, the Legislature eliminated most of the PSC’s retail oversight authority over the telecommunications wireline companies, yet maintained the PSC’s authority over wholesale intercarrier issues. The Act eliminated most of the retail regulation of local exchange telecommunications services by the PSC, including the elimination of rate caps on all retail telecommunications services, elimination of telecommunications-related consumer protection and assistance duties of the PSC, and elimination of the PSC’s remaining oversight of telecommunications service quality.”° Effect of the Bill The bill requires the PSC to regulate pole attachments in Florida, taking over the role currently performed by the FCC. The bill defines the following terms: e "Attaching entity" means a person that is a local exchange carrier, a public utility?” or an electric utility,22 a communications services provider, or a cable television operator who owns or 21 FLA, PUBLIC SERVICE COMMISSION, The PSC’s Role, http://www.psc.state.fl.us (last visited Feb. 26, 2021). 22 Id The PSC regulates five investor-owned electric companies, eight investor-owned natural gas utilities, and 151 investor-owned water and/or wastewater utilities. While the PSC does not fully regulate municipal or cooperative electric utilities, the Commission does have jurisdiction, with regard to rate structure, territorial boundaries, bulk power supply operations, and planning, over 35 municipally owned electric systems and 18 rural electric cooperatives. The PSC has jurisdiction, with regard to territorial boundaries and safety, over 27 municipally owned natural gas utilities and 4 gas districts, and also exercises safety authority over all electric and natural gas systems operating in the state. FLA. PUBLIC SERVICE COMMISSION, 2020 ANNUAL REPORT 14 (2020), http://www.psce.state. fl.us/liles/PDF/Publications/Reports/General/Annualreports/2020.pdI. (last visited Feb. 28, 2021). 23'S. 366.04(5) & (6), F.S. 4S. 366.05(1) & (8), F.S. *5 Section 202.11(1), F.S., defines “Communications services” as “the transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals, including video services, to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. The term includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice-over-Internet- protocol services or is classified by the Federal Communications Commission as enhanced or value-added. The term does not include: Information services. Installation or maintenance of wiring or equipment on a customer’s premises. The sale or rental of tangible personal property. The sale of advertising, including, but not limited to, directory advertising. Bad check charges. Late payment charges. Billing and collection services. Internet access service, electronic mail service, electronic bulletin board service, or similar online computer services.” 26 PSC, Local Competition http://www.psc.state.!1.us/Telecommunication/TclecomLocalCompetition (last visited Mar. 13, 2021). 27 Section 366.02(1), F.S., defines “Public utility” as “every person, corporation, partnership, association, or other legal entity and their lessees, trustees, or receivers supplying electricity or gas (natural, manufactured, or similar gaseous substance) to or for the public within this state; but the term “public utility” does not include either a cooperative now or hereafter organized and existing under the Rural Electric Cooperative Law of the state; a municipality or any agency thereof; any dependent or independent special natural gas district; any natural gas transmission pipeline company making only sales or transportation delivery of natural gas at wholesale and to direct industrial consumers; any entity selling or arranging for sales of natural gas which neither owns nor operates natural gas transmission or distribution facilities within the state; or a person supplying liquefied petroleum gas, in either liquid or gaseous form, irrespective of the method of distribution or delivery, or owning or operating facilities beyond the outlet of a meter through which natural gas is supplied for compression and delivery into motor vehicle fuel tanks or other transportation containers, unless such person also supplies electricity or manufactured or natural gas.” 28 Section 366.02(2), F.S., defines “Electric utility” as “any municipal electric utility, investor-owned electric utility, or rural electric cooperative which owns, maintains, or operates an electric generation, transmission, or distribution system within the state.” STORAGE NAME: h1567.TIE.DOCX PAGE: 4 DATE: 3/14/2021 controls pole attachments. e "Communications services" has the same meaning as in s. 202.11. e "Pole" means a pole, duct, conduit, or right-of-way that is used for wire or wireless communications or electricity distribution and that is owned in whole or in part by a pole owner, or a streetlight fixture that is owned in whole or in part by a public utility. e "Pole attachments” means local exchange carrier, electric, communications services, or cable television facilities attached to a pole by an entity other than the pole owner. e "Pole owner” means a local exchange carrier, a public utility or an electric utility, a communications services provider, a cable television operator, or other public utility which owns a pole used in whole or in part, for electrical purposes or for any wire or wireless communications. e "Redundant pole" means a pole owned or controlled by a pole owner which is: o Within 50 feet of a new pole which is intended to replace the old pole from which some or all of the pole attachments have not been removed and transferred to the new pole; o Left standing after the pole owner has relocated its facilities to underground but on which pole attachments of other attaching entities remain; or o Left standing after a pole owner's attachments have been removed from that route or location to accommodate a new route or design for the delivery service. Regulation of Pole Attachments In the event that a pole owner is unable to reach an agreement with a party seeking pole attachments, the bill requires the PSC to regulate and enforce rates, charges, terms, and conditions for pole attachments and to ensure that they are just and reasonable. The bill authorizes the PSC to regulate attachments by a cable television system or provider of telecommunications service to investor-owned electric utility poles, attachments to streetlight fixtures, and attachments to poles owned by a communications services provider. The bill clarifies that the Legislature encourages parties to enter into voluntary pole attachment agreements, and that voluntary pole attachment agreements do not require PSC approval. The bill provides that the PSC’s authority to regulate such matters includes, but is not limited to, the state regulatory authority provided under federal law. Additionally, the bill requires the PSC to consider the interests of the subscribers and users of the services offered through pole attachments, as well as the interests of the consumers of any pole owner providing such attachments, when developing such rules. The bill authorizes the PSC to hear and resolve complaints concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access relative to pole attachments. The bill specifies that a party's right to nondiscriminatory access to a pole is identical to the rights afforded under 47 U.S.C. s. 224(f)(1), and that a pole owner may deny access to its poles on a nondiscriminatory basis when there is insufficient capacity, for reasons of safety and reliability, and when required by generally applicable engineering purposes. The bill requires a pole owner to consider relevant construction and reliability standards approved by the PSC when evaluating capacity, safety, reliability, and engineering requirements, as well as the financial and performance-related capabilities of the entity requesting attachment. The bill provides that FCC precedent is not binding upon the PSC. Additionally, the bill specifies that PSC, upon the request of a party to a complaint proceeding pending before the FCC, shall assume jurisdiction over the matter if it is not yet subject to a final order of the FCC at the time of the request. The bill requires that the PSC adopt rules by October 1, 2021, to administer and implement these provisions, including one or more appropriate formulae for apportioning costs. STORAGE NAME: h1567.TIE.DOCX PAGE: 5 DATE: 3/14/2021 The bill specifies that such requirements may not be construed to: e Prevent a party at any time from entering into a voluntary agreement authorizing a pole owner to remove an attaching entity's pole attachment. e Impair the contract rights of a party to a valid pole attachment agreement in existence before the effective date of this act. Regulation of Telecommunications Infrastructure The bill requires the PSC to regulate the safety, vegetation management, repair, replacement, maintenance, relocation, emergency response, and storm restoration requirements for poles, conduits, ducts, pipes, pole attachments, wires, cables, and related plant and equipment of communication services providers. The bill requires communications services providers to establish storm reserve funds for the repair and replacement of facilities after natural disasters. The bill requires the PSC to adopt rules by October 1, 2021, to administer and implement these provisions, including: e Mandatory pole inspections, including provisions relating to: o repair or replacement; o vegetation management requirements for poles owned by providers of communications services; o the establishment of storm reserve funds; and o the sequential and timely removal of pole attachments. e Monetary penalties for any communication services provider that fails to comply with such rules. Redundant Poles The bill enumerates certain legislative findings, as follows: e tis in the public interest for public utilities, communications services providers, and cable television operators that own poles to harden their infrastructure to strengthen the ability of their above-ground infrastructure to withstand extreme weather conditions, by and among other things, replacing older poles with newer, stronger poles; however, this work combined with the undergrounding of electrical facilities may result in redundant poles within public rights-of-way and easements for significant durations because owners of third-party pole attachments may not keep pace in removing their facilities from the old poles. e Pole owners that set new poles are prevented from removing redundant poles when the pole attachments of other entities remain on the old poles. Such pole owners continue to incur liability as owners of poles they no longer use or want, but which continue to be used by other entities. e Redundant poles in the public rights-of-way and easements are aesthetically unappealing and potentially create over-crowding of, and unsafe conditions in, the public rights-of-way and easements. e tis in the public interest to timely and sequentially remove pole attachments from redundant poles and to transfer the ownership of poles from pole owners that are no longer using the poles to entities that continue to attach facilities to the poles The bill requires that attaching entities remove their pole attachments from a redundant pole within 90 days of a written request by the pole owner, and requires the PSC to provide a form and any related requirements for such a notice. Absent good cause, the pole owner may transfer or relocate the pole attachment to the new pole at the non-compliant attaching entity's expense, unless the pole attachments are owned by an electric utility. Relating to abandoned or unused pole attachments, the bill: STORAGE NAME: h1567.TIE.DOCX PAGE: 6 DATE: 3/14/2021 e Authorizes the pole owner to remove the pole attachment at the noncompliant attaching entity's expense. Authorizes the pole owner to sell or dispose of the pole attachment. e Requires the noncompliant attaching entity to indemnify, defend, and hold harmless the pole owner and its directors, officers, agents, and employees from and against all liability, except to the extent of any finding of gross negligence or willful misconduct, including attorney fees and litigation costs, arising in connection with the removal, transfer, sale, or disposal of the pole attachments from a redundant pole by the pole owner. In the event that a pole owner removes and relocates its overhead facilities or converts its overhead facilities to underground and the attaching entity does not remove their attachments within 90 days of the written notice, the bill: e Authorizes a pole owner to transfer legal title of the redundant pole, by operation of law, to an attaching entity. e Requires the attaching entity to pay the pole owner an amount equal to the total of the remaining book value for all poles, e Allows the pole owner to enforce their rights in circuit court, and specifies that the prevailing party is entitled to recover attorney fees and court costs. e EEntitles the pole owner to prejudgment interest. Upon transfer of title, all obligation, responsibility, and liability incumbent upon a pole owner becomes the legal obligation, responsibility, and liability of the new pole owner. The bill enables the PSC to require, by rule, that an attaching entity post security instruments’? in favor of pole owners in amounts reasonably sufficient to cover the cost of the removal, transfer, sale, or disposal of pole attachments. Monetary Penalties The bill requires the PSC to impose monetary penalties upon any entity that violates the provisions of the bill. Additionally, the bill authorizes the PSC to order the removal or transfer of pole attachments by noncompliant attaching entities, upon petition by a pole owner, and requires the PSC to impose monetary penalties. The bill specifies that the proceeds of any monetary penalties must be used by the PSC to provide grants for the installing and upgrading of broadband infrastructure in unserved and underserved rural and low-income areas of this state. The bill requires the PSC to establish criteria for the award of grants from the fund to businesses and organizations that have demonstrated the ability to construct and install infrastructure and that have submitted an application and proposal detailing how the grant funds would further the objectives of this subsection to expand broadband services in unserved and underserved areas. Rulemaking, Generally The bill requires the PSC to adopt rules which implement the bill by October 1, 2021, including rules providing for the sequential removal of all pole attachments from redundant poles and to establish monetary penalties. The bill takes effect upon becoming law. 2° A security instrument is a performance bond or an equivalent financial instrument that guarantees payment for certain obligations. STORAGE NAME: h1567.TIE.DOCX PAGE: 7 DATE: 3/14/2021 B. SECTION DIRECTORY: Section 1 Amends s. 366.02, F.S.; defining terms. Section 2 Amends s. 366.04, F.S.; relating to jurisdiction of the Public Service Commission. Section 3 Creates s. 366.97, F.S.; relating to redundant poles; transfer of ownership; and penalties. Section 3 Provides a directive to the Division of Law Revision. Section 4 Provides an effective date. li. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE GOVERNMENT: 1. Revenues: None. The bill does not authorize the PSC to impose new or existing regulatory assessment fees on communications services providers to account for its new regulatory responsibilities over these providers.*° 2. Expenditures: The bill is likely to have a significant negative impact on state government expenditures, as the PSC is directed to adopt rules and regulate entirely new matters, including poll attachments, reliability of communications services infrastructure, and broadband infrastructure grants. B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 1. Revenues: None. 2. Expenditures: None. C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: Depending on the PSC’s implementation of its authority over pole attachments under the bill, the financial and legal responsibilities of parties to poll attachment arrangements in Florida could change substantially. It is likely that the PSC’s adoption of rules and implementation of this new authority will involve litigation between the affected parties. Further, entities with attachments on redundant poles may face negative financial impacts not contemplated in current negotiated pole attachment agreements. The bill will impose new regulatory expenses on communications service providers that own poles, wires, and other facilities in the state. 39 See s. 364.336, F.S. STORAGE NAME: h1567.TIE.DOCX PAGE: 8 DATE: 3/14/2021 D. FISCAL COMMENTS: None. lil. COMMENTS A. CONSTITUTIONAL ISSUES: 1. Applicability of Municipality/County Mandates Provision: Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take action requiring the expenditures of funds; reduce the authority that counties or municipalities have to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or municipalities. 2. Other: None. B. RULE-MAKING AUTHORITY: The bill requires the PSC to adopt rules by October 1, 2021. See Drafting Issues or Other Comments. C. DRAFTING ISSUES OR OTHER COMMENTS: The bill requires the PSC, upon request by a party to a complaint proceeding pending before the FCC, to take jurisdiction over the matter. This could lead to forum shopping for specific pending complaints and cause additional expenses due to relitigation. The bill requires the PSC to use the proceeds from certain monetary penalties to provide grants for the installation of infrastructure in certain areas. The PSC will need to create a grant program to implement this section. The PSC does not have experience in implementing grant programs. The bill requires the PSC to adopt implementing rules by October 1, 2021. While the PSC has control over the timing of proposing a rule, the timing of rule adoption depends on matters outside of its control, including challenges brought by stakeholders. IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES STORAGE NAME: h1567.TIE.DOCX PAGE: 9 DATE: 3/14/2021 FtLORIODA HO US E O F R EP RES EN TAT IVE S HB 1567 2021 1 A bill to be entitled 2 An act relating to utility and communication service 3 poles; amending s. 366.02, F.S.; defining terms; 4 amending s. 366.04, F.S.; requiring the Public Service 5 Commission to regulate and enforce rates, charges, 6 terms, and conditions for pole attachments under 7 certain circumstances; providing requirements for such 8 rules; providing construction; providing situations 9 under which a pole owner may deny access to the 10 owner's pole on a nondiscriminatory basis; authorizing 11 the commission to hear and resolve complaints 12 concerning rates, charges, terms, conditions, 13 voluntary agreements, and denial of access relative to 14 pole attachments; requiring the commission, at the 15 request of a party, to assume jurisdiction over 16 certain 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 Page 1 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA HO US E O F REP RES EN TAT IV E S HB 1567 2021 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 cull 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 Page 2 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA H O US E O F REP RES EN TATIHIVE S$ HB 1567 2021 Sl 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 67) s. 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 Page 3 of 12 CODING: Words stricken are deletions: words underlined are additions. hb1567-00 FLORIODA H OU SE O F REP RES EN TA TIVE 8S HB 1567 2021 76 owner. ia) (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 92 been removed from that route or location to accommodate a new 93} route or design for the delivery service. 94 95 Section 2. Subsections (8) and (9) are added to section 96 366.04, Florida Statutes, to read: 97 366.04 Jurisdiction of commission.— 98 (8) (a) The commission shall regulate and enforce rates, 99) charges, terms, and conditions for pole attachments in 100) situations in which a pole owner is unable to reach an agreement Page 4 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA H O US E O F REP RES EN TAT IVE S HB 1567 2021 101} with a party seeking pole attachments, including the types of 102 attachments regulated under 47 U.S.C. s. 224(a) (4), attachments 103} to streetlight fixtures, or attachments to poles owned by a 104 communications services provider, to ensure that such rates, 105 charges, terms, and conditions are just and reasonable. The 106] commission's authority under this subsection includes, but is 107} not limited to, the state regulatory authority referenced in 47 109 (pb) In developing the rules, the commission shall consider 110 the interests of the subscribers and users of the services 111 offered through such pole attachments, as well as the interests 112) of the consumers of any pole owner providing such attachments. 113 (c) It is the intent of the Legislature to encourage 114] parties to enter into voluntary pole attachment agreements, and 115] this subsection may not be construed to prevent parties from 116 voluntarily entering into pole attachment agreements, without 117] commission approval. 118 (d) A party's right to nondiscriminatory access to a pole 119] under this subsection is identical to the rights afforded under 120} 47 U.S.C. s. 224(f) (1). A pole owner may deny access to its 121] poles on a nondiscriminatory basis when there is insufficient 122| capacity, for reasons of safety and reliability, and when 123} required by generally applicable engineering purposes. A pole 124} owner's evaluation of capacity, safety, reliability, and 125} engineering requirements must consider relevant construction and Page 5 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA HO US E O F REP RES EN TATIV ES HB 1567 2021 126] reliability standards approved by the commission, and may 127} include an evaluation of the financial and performance-related 128] capabilities of the entity requesting attachment. 129 (e) The commission may hear and resolve complaints 130} concerning rates, charges, terms, conditions, voluntary 131] agreements, or any denial of access relative to pole attachments 132] with regard to the types of attachments regulated under 47 133 U.S.C. s. 224, attachments to streetlight fixtures, or 134} attachments owned by a communications services provider. Federal 135} Communications Commission precedent is not binding upon the 136} commission in the exercise of its authority under this 137 subsection. 138 (£) Upon commencement of its authority under this 139] subsection, the commission, upon the request of a party to a 140} complaint proceeding pending before the Federal Communications 141} Commission, shall assume jurisdiction over the matter if it is 142} not yet subject to a final order of the Federal Communications 143} Commission at the time of the request. 144 (q) The commission shall adopt rules by October 1, 2021, 145) to administer and implement this subsection, including one or 146] more appropriate formulae for apportioning costs. 147 (9) (a) The commission shall regulate the safety, 148] vegetation management, repair, replacement, maintenance, 149} relocation, emergency response, and storm restoration 150] requirements for poles, conduits, ducts, pipes, pole Page 6 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIDA H O US E O F REP RES EN TA TIVE S HB 1567 2021 15 attachments, wires, cables, and related plant and equipment of 152] communication services providers. The commission shall require 153] communications services providers to establish storm reserve 154) funds for the repair and replacement of facilities after natural 155 disasters. 156 (ob) The commission shall adopt rules by October 1, 2021, 157] to administer and implement this subsection, including, but not 158 limited to: 159 1. Mandatory pole inspections, including repair or 160} replacement; vegetation management requirements for poles owned 161] by providers of communications services; the establishment of 162) storm reserve funds; and the sequential and timely removal of 163} pole attachments; and 164 2. Monetary penalties to be imposed upon any communication 165] services provider that fails to comply with any such rule of the 166 commission. 167 Section 3. Section 366.97, Florida Statutes, is created to 168] read: 169 366.97 Redundant poles; transfer of ownership; penalties.— 170 (1) The Legislature finds that: 171 (a) It is in the public interest for public utilities, 172] communications services providers, and cable television 173] operators that own poles to harden their infrastructure to 174] strengthen the ability of their above-ground infrastructure to 175] withstand extreme weather conditions, by and among other things, Page 7 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA HO US E O F REP RES ENTA TIVE S HB 1567 2021 176] replacing older poles with newer, stronger poles; however, this 177| work combined with the undergrounding of electrical facilities 178} may result in redundant poles within public rights-of-way and 179] easements for significant durations because owners of third- 180) party pole attachments may not keep pace in removing their 181 facilities from the old poles. 182 (b) Pole owners that set new poles are prevented from 183) removing redundant poles when the pole attachments of other 184} entities remain on the old poles. Such pole owners continue to 185| incur liability as owners of poles they no longer use or want, 186} but which continue to be used by other entities. 187 (c) Redundant poles in the public rights-of-way and 188] easements are aesthetically unappealing and potentially create 189] over-crowding of, and unsafe conditions in, the public rights- 190] of-way and easements. 191 (d) It is in the public interest to timely and 192] sequentially remove pole attachments from redundant poles and to 193] transfer the ownership of poles from pole owners that are no 194] longer using the poles to entities that continue to attach 195] facilities to the poles. 196 (2) (a) An attaching entity must remove its pole 197] attachments from a redundant pole within 90 calendar days after 198] receipt of written notice from the pole owner requesting such 199} removal. The commission shall provide the form and requirements 200 for such notice. Page 8 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA HO US E O F REP RES EN TATIVE § HB 1567 2021 201 (bo) If an attaching entity fails to remove a pole 202 attachment pursuant to paragraph (a), except to the extent 203] excused by an event of force majeure or other good cause as 204] determined by the commission, the pole owner or its agent may 205 transfer or relocate the pole attachment to the new pole at the 206] non-compliant attaching entity's expense. This subsection does 207} not apply to an electric utility's pole attachments. 208 (c) If a pole attachment is abandoned or no longer in use 209] by a noncompliant attaching entity, the pole owner or its agent 210] may remove the pole attachment at the noncompliant attaching 211] entity's expense and may sell or dispose of the pole attachment. 212| The noncompliant attaching entity shall indemnify, defend, and 213} hold harmless the pole owner and its directors, officers, 214] agents, and employees from and against all liability, except to 215| the extent of any finding of gross negligence or willful 216} misconduct, including attorney fees and litigation costs, 214 arising in connection with the removal, transfer, sale, or 218] disposal of the pole attachments from a redundant pole by the 219] pole owner. 220 (d) The commission may require by rule that an attaching 221| entity post security instruments in favor of pole owners in 222 amounts reasonably sufficient to cover the cost of the removal, 223| transfer, sale, or disposal of pole attachments. 224 (3) (a) When a pole owner removes and relocates its 225 overhead facilities or converts its overhead facilities to Page 9 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA HO US E O F REP RES EN TAT IV E S HB 1567 2021 226 underground, in lieu of removal, transfer, sale, or disposal of 227| the pole attachments as provided in subsection (2), the pole 228 owner may transfer legal title of the redundant pole to an 229| attaching entity that has not removed a pole attachment within 230] 90 days after receipt of a notice to remove. 23.1 (b) Transfer of title shall occur by operation of law upon 232| the date a written notice of title transfer is sent by the pole 233] owner. The notice of title transfer must include pole 234 identification numbers, if applicable, and must describe with 235| specificity the locations of the pole or poles to be transferred 236] and their corresponding remaining book value. 237 (c) Within 60 days after transferring title, the attaching 238) entity shall remit payment to the transferor pole owner an 239] amount equal to the total of the remaining book value for all 240} poles listed in the notice of title transfer. 241 (d) A transferor pole owner may seek to enforce its rights 242) under this subsection, including its right to payment, in the 243} circuit court in whose jurisdiction the transferred poles are 244 located. The transferor pole owner is entitled to prejudgment 245| interest at the prevailing statutory rate and the prevailing 246] party in any such action is entitled to recover its reasonable 247 attorney fees and court costs. 248 (e) Upon transfer of title, all obligation, 249} responsibility, and liability incumbent upon a pole owner in 250| this state including, but not limited to, safety, vegetation Page 10 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 HB 1567 2021 251] management, repair, replacement, maintenance, relocation, 252 removal, emergency response, storm restoration, taxes, and 253} third-party liability, shall immediately become the legal 254} obligation, responsibility, and liability of the new pole owner. 255 The transferor pole owner is relieved of all such obligation, 256| responsibility, and liability immediately upon transfer of 257| title. 258 (4) The commission shall impose monetary penalties upon 259) any entity subject to its jurisdiction which is found to be in 260] violation of this section. Upon petition by a pole owner, the 261) commission may issue orders requiring the removal or transfer of 262] pole attachments by noncompliant attaching entities and shall 263} impose monetary penalties in accordance with this section. 264 (5) All monetary penalties assessed by the commission 265] pursuant to this section must be used by the commission to 266] provide grants for the installing and upgrading of broadband 267 infrastructure in unserved and underserved rural and low-income 268 areas of this state. The commission shall establish criteria for 269| the award of grants from the fund to businesses and 270} organizations that have demonstrated the ability to construct 271. and install infrastructure and that have submitted an 272| application and proposal detailing how the grant funds would 273| further the objectives of this subsection to expand broadband 274 services in unserved and underserved areas. 215 (6) This section may not be construed to do any of the Page 11 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 FLORIODA H OU SE O F REP RES EN TATIVE §S HB 1567 2021 276 following: 277 (a) Prevent a party at any time from entering into a 278] voluntary agreement authorizing a pole owner to remove an 279} attaching entity's pole attachment. It is the intent of the 280} Legislature to encourage parties to enter into such voluntary 281] agreements without commission approval. 282 (bo) Impair the contract rights of a party to a valid pole 283| attachment agreement in existence before the effective date of 284) this act. 285 (7) The commission shall adopt rules by October 1, 2021, 286} to implement this section, including rules providing for the 287 sequential removal of all pole attachments from redundant poles 288] and establishing monetary penalties to be imposed against any 289) entity in violation of this section. 290 Section 4. The Division of Law Revision is directed to 291 replace the phrase "the effective date of this act" wherever it 292 occurs in this act with the date this act becomes a law. 293 Section 5. This act shall take effect upon becoming a law. Page 12 of 12 CODING: Words stricken are deletions; words underlined are additions. hb1567-00 TOURISM, INFRASTRUCTURE & ENERGY SUBCOMMITTEE HB 1567 by Rep. DiCeglie Utility and Communication Service Poles AMENDMENT SUMMARY March 16, 2021 Amendment 1 by Rep. DiCeglie (Strike-all amendment): The strike-all amendment: e Clarifies that “broadband service providers” are also attaching entities. e Specifies that the Florida Public Service Commission (PSC) “shall” hear and resolve complaints concerning pole attachments. e Requires the PSC to provide certification to the Federal Communications Commission upon the adoption of certain rules. e Removes a liability provision for pole owners relating to unused poles. Increases the amount of time for an attaching entity to remove its pole attachments, from 90 to 180 days. e Clarifies that certain notices may be sent electronically. e Provides an exception for certain actions for good cause as determined by the PSC. e Authorizes the PSC to issue orders involving certain disputes between pole owners and attaching entities. Oo YT nD oO FF W NY F COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 COMMITTEE/SUBCOMMITTEE ACTION ADOPTED __ (Y/N) ADOPTED AS AMENDED __ (Y/N) ADOPTED W/O OBJECTION __ (Y/N) FAILED TO ADOPT __ (Y/N) WITHDRAWN __ (Y/N) Committee/Subcommittee hearing bill: Tourism, Infrastructure & Energy Subcommittee Representative DiCeglie offered the following: Amendment (with title amendment) Remove everything after the enacting clause and insert: Section 1. Subsection (4) through (9) are added to section 366.02, Florida Statutes, to read: 366.02 Definitions.—As used in this chapter: (4) "Attaching entity" means a person that is a local exchange carrier, a public utility, a communications services provider, a broadband service provider, or a cable television operator who owns or controls pole attachments. (5) “Communications services" has the same meaning as in s. 202.11. 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 1 of 13 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 (6) "Pole" means a pole, duct, conduit, or right-of-way that is used for wire or wireless communications or electricity distribution and that is owned in whole or in part by a pole owner, or a streetlight fixture that is owned in whole or in part by a public utility. (7) "Pole attachments" means local exchange carrier, electric, communications services, broadband, or cable television facilities attached to a pole by an entity other than the pole owner. (8) "Pole owner" means a local exchange carrier, a public utility, a communications services provider, a cable television operator, or other public utility which owns a pole used in whole or in part, for electrical purposes or for any wire or wireless communications. (9) "Redundant pole" means a pole owned or controlled by a pole owner which is: 1. Within 50 feet of a new pole which is intended to replace the old pole from which some or all of the pole attachments have not been removed and transferred to the new pole; 2. Left standing after the pole owner has relocated its facilities to underground but on which pole attachments of other attaching entities remain; or 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 2 of 13 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 3. Left standing after a pole owner's attachments have been removed from that route or location to accommodate a new route or design for the delivery of service. Section 2. Subsections (8) and (9) are added to section 366.04, Florida Statutes, to read: 366.04 Jurisdiction of commission.— (8) (a) The commission shall regulate and enforce rates, charges, terms, and conditions for pole attachments in situations in which a pole owner is unable to reach an agreement with a party seeking pole attachments, including the types of attachments regulated under 47 U.S.C. s. 224(a) (4), attachments to streetlight fixtures, or attachments to poles owned by a communications services provider, to ensure that such rates, charges, terms, and conditions are just and reasonable. The commission's authority under this subsection includes, but is not limited to, the state regulatory authority referenced in 47 U.S.C. s. 224(c). (ob) In developing the rules, the commission shall consider the interests of the subscribers and users of the services offered through such pole attachments, as well as the interests of the consumers of any pole owner providing such attachments. (c) It is the intent of the Legislature to encourage parties to enter into voluntary pole attachment agreements, and this subsection may not be construed to prevent parties from 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 3 of 13 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 719 80 81 82 83 84 85 86 87 88 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 voluntarily entering into pole attachment agreements, without commission approval. (d) A party's right to nondiscriminatory access to a pole under this subsection is identical to the rights afforded under 47 U.S.C. s. 224(f) (1). A pole owner may deny access to its poles on a nondiscriminatory basis when there is insufficient capacity, for reasons of safety and reliability, and when required by generally applicable engineering purposes. A pole owner's evaluation of capacity, safety, reliability, and engineering requirements must consider relevant construction and reliability standards approved by the commission, and may include an evaluation of the financial and performance-related capabilities of the entity requesting attachment. (e) The commission shall hear and resolve complaints concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access relative to pole attachments with regard to the types of attachments regulated under 47 U.S.C. s. 224, attachments to streetlight fixtures, or attachments owned by a communications services provider. Federal Communications Commission precedent is not binding upon the commission in the exercise of its authority under this subsection. (£) Upon commencement of its authority under this subsection, the commission, upon the request of a party toa complaint proceeding pending before the Federal Communications 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 4 of 13 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 Commission, shall assume jurisdiction over the matter if it is not yet subject to a final order of the Federal Communications Commission at the time of the request. (g) The commission shall adopt rules by October 1, 2021, to administer and implement this subsection, including one or more appropriate formulae for apportioning costs, and shall, upon adoption of such rules, provide its certification to the Federal Communications Commission pursuant to 47 U.S.C. s. 224(c) (2). (9) (a) The commission shall regulate the safety, vegetation management, repair, replacement, maintenance, relocation, emergency response, and storm restoration requirements for poles, conduits, ducts, pipes, pole attachments, wires, cables, and related plant and equipment of communication services providers. The commission shall require communications services providers to establish storm reserve funds for the repair and replacement of facilities after natural disasters. (bo) The commission shall adopt rules by October 1, 2021, to administer and implement this subsection, including, but not limited to: 1. Mandatory pole inspections, including repair or replacement; vegetation management requirements for poles owned by providers of communications services; the establishment of 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 5 of 13 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 storm reserve funds; and the sequential and timely removal of pole attachments; and 2. Monetary penalties to be imposed upon any communication services provider that fails to comply with any such rule of the commission. Section 3. Section 366.97, Florida Statutes, is created to read: 366.97 Redundant poles; transfer of ownership; penalties.— (1) The Legislature finds that: (a) It is in the public interest for public utilities, communications services providers, and cable television operators that own poles to harden their infrastructure to strengthen the ability of their above-ground infrastructure to withstand extreme weather conditions, by and among other things, replacing older poles with newer, stronger poles; however, this work combined with the undergrounding of electrical facilities may result in redundant poles within public rights-of-way and easements for significant durations because owners of third- party pole attachments may not keep pace in removing their facilities from the old poles. (ob) Pole owners that set new poles are prevented from removing redundant poles when the pole attachments of other entities remain on the old poles. (c) Redundant poles in the public rights-of-way and easements are aesthetically unappealing and potentially create 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 6 of 13 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 over-crowding of, and unsafe conditions in, the public rights-— of-way and easements. (d) It is in the public interest to timely remove pole attachments from redundant poles and to transfer the ownership of poles from pole owners that are no longer using the poles to entities that continue to attach facilities to the poles. (2) (a) An attaching entity must remove its pole attachments from a redundant pole within 180 calendar days after receipt of electronic or written notice from the pole owner requesting such removal. The commission shall determine by rule the sufficiency of, and requirements for, such notice. (bo) If an attaching entity fails to remove a pole attachment pursuant to paragraph (a), except to the extent excused by an event of force majeure or other good cause as determined by the commission, the pole owner or its agent may transfer or relocate the pole attachment to the new pole at the non-compliant attaching entity's expense. This subsection does not apply to an electric utility's pole attachments. The noncompliant attaching entity shall indemnify, defend, and hold harmless the pole owner and its directors, officers, agents and employees from and against all liability, except to the extent of any finding of gross negligence or willful misconduct, including attorneys’ fees and litigation costs, arising in connection with the transfer of the pole attachment from a redundant pole to a new pole by the pole owner. 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 7 of 13 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 (c) If a pole attachment is no longer in use by a noncompliant attaching entity, the pole owner or its agent may remove the pole attachment at the noncompliant attaching entity's expense and may sell or dispose of the pole attachment, except to the extent the attaching entity’s noncompliance is excused by an event of force majeure or other good cause as determined by the commission. The noncompliant attaching entity shall indemnify, defend, and hold harmless the pole owner and its directors, officers, agents, and employees from and against all liability, except to the extent of any finding of gross negligence or willful misconduct, including attorney fees and litigation costs, arising in connection with the removal, transfer, sale, or disposal of the pole attachments from a redundant pole by the pole owner. (d) The commission may require by rule that an attaching entity post security instruments in favor of pole owners in amounts reasonably sufficient to cover the cost of the removal, transfer, sale, or disposal of pole attachments. (3) (a) When a pole owner removes and relocates its overhead facilities or converts its overhead facilities to underground, in lieu of removal, transfer, sale, or disposal of the pole attachments as provided in subsection (2), the pole owner may transfer legal title of the redundant pole to an attaching entity that has not removed a pole attachment within 180 calendar days after receipt of a notice to remove, except to 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 8 of 13 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 the extent excused by an event of force majeure or other good cause as determined by the commission. (bo) Transfer of title shall occur by operation of law upon the date a written notice of title transfer is sent by the pole owner. The notice of title transfer must include pole identification numbers, if applicable, and must describe with specificity the locations of the pole or poles to be transferred and their corresponding remaining book value. (c) Within 60 days after transferring title, the attaching entity shall remit payment to the transferor pole owner an amount equal to the total of the remaining book value for all poles listed in the notice of title transfer. (d) A transferor pole owner may seek to enforce its rights under this subsection, including its right to payment, in the circuit court in whose jurisdiction the transferred poles are located. The transferor pole owner is entitled to prejudgment interest at the prevailing statutory rate and the prevailing party in any such action is entitled to recover its reasonable attorney fees and court costs. (e) Upon transfer of title, all obligation, responsibility, and liability incumbent upon a pole owner in this state including, but not limited to, safety, vegetation management, repair, replacement, maintenance, relocation, removal, emergency response, storm restoration, taxes, and third-party liability, shall immediately become the legal 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 9 of 13 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 obligation, responsibility, and liability of the new pole owner. The transferor pole owner is relieved of all such obligation, responsibility, and liability immediately upon transfer of title. (4) The commission shall impose monetary penalties upon any entity subject to its jurisdiction which is found to be in violation of this section. Upon petition by a pole owner, the commission may issue orders requiring the removal or transfer of pole attachments by noncompliant attaching entities and may issue orders resolving disputes between pole owners and attaching entities over the transfer of title of poles or the amount of remaining book value of transferred poles. The commission shall impose monetary penalties in accordance with this section. (5) All monetary penalties assessed by the commission pursuant to this section must be used by the commission to provide grants for the installing and upgrading of broadband infrastructure in unserved and underserved rural and low-income areas of this state. The commission shall establish criteria for the award of grants from the fund to businesses and organizations that have demonstrated the ability to construct and install infrastructure and that have submitted an application and proposal detailing how the grant funds would further the objectives of this subsection to expand broadband services in unserved and underserved areas. 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 10 of 13 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 (6) This section may not be construed to do any of the following: (a) Prevent a party at any time from entering into a voluntary agreement authorizing a pole owner to remove an attaching entity's pole attachment. It is the intent of the Legislature to encourage parties to enter into such voluntary agreements without commission approval. (bo) Impair the contract rights of a party to a valid pole attachment agreement in existence before the effective date of this act. (7) The commission shall adopt rules by October 1, 2021, to implement this section, including rules providing for the timely and coordinated removal of all pole attachments from redundant poles and establishing monetary penalties to be imposed against any entity in violation of this section. Section 4. The Division of Law Revision is directed to replace the phrase "the effective date of this act" wherever it occurs in this act with the date this act becomes a law. Section 5. This act shall take effect upon becoming a law. TITLE AMENDMENT Remove everything before the enacting clause and insert: An act relating to utility and communication service poles; amending s. 366.02, F.S.; defining terms; amending s. 366.04, 206049 — h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 11 of 13 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 F.S.; requiring the Public Service Commission to regulate and enforce rates, charges, terms, and conditions for pole attachments under certain circumstances; providing requirements for such rules; providing construction; providing situations under which a pole owner may deny access to the owner's pole on a nondiscriminatory basis; requiring the commission to hear and resolve complaints concerning rates, charges, terms, conditions, voluntary agreements, and denial of access relative to pole attachments; requiring the commission, at the request of a party, to assume jurisdiction over certain complaints before the Federal Communications Commission; requiring the commission to adopt rules by a specified date; requiring the commission to regulate the safety, vegetation management, repair, replacement, maintenance, relocation, emergency response, and storm restoration requirements for certain plants and equipment of communications services providers; requiring the commission to adopt rules, including monetary penalties, by a specified date; creating s. 366.97, F.S.; providing legislative findings; requiring attaching entities to remove pole attachments from redundant poles within a specified timeframe after receipt of an electronic or written notice from the pole owner; requiring the commission to determine by rule the sufficiency of, and requirements for, such notice; authorizing a pole owner or its agent to transfer or relocate pole attachments of an attaching entity at the entity's expense under certain circumstances; 206049 —- h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 12 of 13 COMMITTEE/SUBCOMMITTEE AMENDMENT Bill No. HB 1567 (2021) Amendment No. 1 288| providing an exception; authorizing a pole owner to remove and 289 sell or dispose of certain pole attachments; requiring that the 290 pole owner and its directors, officers, agents, and employees be 291) held harmless under certain circumstances for such actions; 292 authorizing the commission to require attaching entities to post 293 certain security instruments by rule; authorizing certain pole 294 owners to transfer legal title of a redundant pole to an 295 attaching entity that has not removed a pole attachment within a 296 specified timeframe; providing for such transfer of title; 297 providing for the transfer of obligation, responsibility, and 298 liability of a pole to the new owner upon such a transfer of 299) title; requiring the commission to impose monetary penalties for 300 violations; requiring the commission to provide grants to 301 install and upgrade broadband infrastructure in this state from 302 any monetary penalty collected; providing construction; 303 requiring the commission to adopt rules by a specified date; 304] providing a directive to the Division of Law Revision; providing 305 an effective date. 206049 — h1567-strike.docx Published On: 3/15/2021 6:04:09 PM Page 13 of 13
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