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