337.401 Use of right-of-way for utilities subject to regulation; permit; fees.—
(1)(a) The department and local governmental entities, referred to in this section and in ss. 337.402-337.404 as the “authority,” that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining across, on, or within the right-of-way limits of any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, voice, telegraph, data, or other communications services lines or wireless facilities; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures referred to in this section and in ss. 337.402-337.404 as the “utility.” The department may enter into a permit-delegation agreement with a governmental entity if issuance of a permit is based on requirements that the department finds will ensure the safety and integrity of facilities of the Department of Transportation; however, the permit-delegation agreement does not apply to facilities of electric utilities as defined in s. 366.02(4).
(b) For aerial and underground electric utility transmission lines designed to operate at 69 or more kilovolts that are needed to accommodate the additional electrical transfer capacity on the transmission grid resulting from new base-load generating facilities, the department’s rules shall provide for placement of and access to such transmission lines adjacent to and within the right-of-way of any department-controlled public roads, including longitudinally within limited access facilities where there is no other practicable alternative available, to the greatest extent allowed by federal law, if compliance with the standards established by such rules is achieved. Without limiting or conditioning the department’s jurisdiction or authority described in paragraph (a), with respect to limited access right-of-way, such rules may include, but need not be limited to, that the use of the right-of-way for longitudinal placement of electric utility transmission lines is reasonable based upon a consideration of economic and environmental factors, including, without limitation, other practicable alternative alignments, utility corridors and easements, impacts on adjacent property owners, and minimum clear zones and other safety standards, and further provide that placement of the electric utility transmission lines within the department’s right-of-way does not interfere with operational requirements of the transportation facility or planned or potential future expansion of such transportation facility. If the department approves longitudinal placement of electric utility transmission lines in limited access facilities, compensation for the use of the right-of-way is required. Such consideration or compensation paid by the electric utility in connection with the department’s issuance of a permit does not create any property right in the department’s property regardless of the amount of consideration paid or the improvements constructed on the property by the utility. Upon notice by the department that the property is needed for expansion or improvement of the transportation facility, the electric utility transmission line will be removed or relocated at the electric utility’s sole expense. The electric utility shall pay to the department reasonable damages resulting from the utility’s failure or refusal to timely remove or relocate its transmission lines. The rules to be adopted by the department may also address the compensation methodology and removal or relocation. As used in this subsection, the term “base-load generating facilities” means electric power plants that are certified under part II of chapter 403.
(2)(a) The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. A utility may not be installed, located, or relocated unless authorized by a written permit issued by the authority. However, for public roads or publicly owned rail corridors under the jurisdiction of the department, a utility relocation schedule and relocation agreement may be executed in lieu of a written permit. The permit must require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto. A permit application required under this subsection by a county or municipality having jurisdiction and control of the right-of-way of any public road must be processed and acted upon in accordance with the timeframes provided in subparagraphs (7)(d)7., 8., and 9.
(b) Notwithstanding paragraph (a), a municipality may not prohibit, or require a permit for, the installation of a public sewer transmission line placed and maintained within and under publicly dedicated rights-of-way as part of a septic-to-sewer conversion where the work is being performed under permits issued by the Department of Transportation pursuant to this chapter and the Department of Environmental Protection, or its delegate, pursuant to chapter 403.
(3)(a) Because of the unique circumstances applicable to providers of communications services, including, but not limited to, the circumstances described in paragraph (e) and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services, taking into account the distinct engineering, construction, operation, maintenance, public works, and safety requirements of the provider’s facilities, and, notwithstanding any other law, may not require a provider of communications services to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way. In addition to other reasonable rules or regulations that a municipality or county may adopt relating to the placement or maintenance of communications facilities in its roads or rights-of-way under this subsection or subsection (7), a municipality or county may require a provider of communications services that places or seeks to place facilities in its roads or rights-of-way to register with the municipality or county. To register, a provider of communications services may be required only to provide its name; the name, address, and telephone number of a contact person for the registrant; the number of the registrant’s current certificate of authorization issued by the Florida Public Service Commission, the Federal Communications Commission, or the Department of State; a statement of whether the registrant is a pass-through provider as defined in subparagraph (6)(a)1.; the registrant’s federal employer identification number; and any required proof of insurance or self-insuring status adequate to defend and cover claims. A municipality or county may not require a registrant to renew a registration more frequently than every 5 years but may require during this period that a registrant update the registration information provided under this subsection within 90 days after a change in such information. A municipality or county may not require the registrant to provide an inventory of communications facilities, maps, locations of such facilities, or other information by a registrant as a condition of registration, renewal, or for any other purpose; provided, however, that a municipality or county may require as part of a permit application that the applicant identify at-grade communications facilities within 50 feet of the proposed installation location for the placement of at-grade communications facilities. A municipality or county may not require a provider to pay any fee, cost, or other charge for registration or renewal thereof. It is the intent of the Legislature that the placement, operation, maintenance, upgrading, and extension of communications facilities not be unreasonably interrupted or delayed through the permitting or other local regulatory process. Except as provided in this chapter or otherwise expressly authorized by chapter 202, chapter 364, or chapter 610, a municipality or county may not adopt or enforce any ordinance, regulation, or requirement as to the placement or operation of communications facilities in a right-of-way by a communications services provider authorized by state or local law to operate in a right-of-way; regulate any communications services; or impose or collect any tax, fee, cost, charge, or exaction for the provision of communications services over the communications services provider’s communications facilities in a right-of-way.
(b) Registration described in paragraph (a) does not establish a right to place or maintain, or priority for the placement or maintenance of, a communications facility in roads or rights-of-way of a municipality or county. Each municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power, subject to the limitations imposed in this section and chapters 202 and 610. Any rules or regulations adopted by a municipality or county which govern the occupation of its roads or rights-of-way by providers of communications services must be related to the placement or maintenance of facilities in such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters necessary to manage the roads or rights-of-way of the municipality or county.
(c) Any municipality or county that, as of January 1, 2019, elected to require permit fees from any provider of communications services that uses or occupies municipal or county roads or rights-of-way pursuant to former paragraph (c) or former paragraph (j), Florida Statutes 2018, may continue to require and collect such fees. A municipality or county that elected as of January 1, 2019, to require permit fees may elect to forego such fees as provided herein. A municipality or county that elected as of January 1, 2019, not to require permit fees may not elect to impose permit fees. All fees authorized under this paragraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee authorized under this paragraph may not be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not authorized under this paragraph, the prevailing party may recover court costs and attorney fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a municipality or charter county under this paragraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way, including, but not limited to, the performance of service restoration work on existing facilities, extensions of such facilities for providing communications services to customers, and the placement of micro wireless facilities in accordance with subparagraph (7)(e)3.
1. If a municipality or charter county elects to not require permit fees, the total rate for the local communications services tax as computed under s. 202.20 for that municipality or charter county may be increased by ordinance or resolution by an amount not to exceed a rate of 0.12 percent.
2. If a noncharter county elects to not require permit fees, the total rate for the local communications services tax as computed under s. 202.20 for that noncharter county may be increased by ordinance or resolution by an amount not to exceed a rate of 0.24 percent, to replace the revenue the noncharter county would otherwise have received from permit fees for providers of communications services.
(d) In addition to any other notice requirements, a municipality must provide to the Secretary of State, at least 10 days prior to consideration on first reading, notice of a proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. In addition to any other notice requirements, a county must provide to the Secretary of State, at least 15 days prior to consideration at a public hearing, notice of a proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. The notice required by this paragraph must be published by the Secretary of State on a designated Internet website. The failure of a municipality or county to provide such notice does not render the ordinance invalid, provided that enforcement of such ordinance must be suspended until 30 days after the municipality or county provides the required notice.
(e) The authority of municipalities and counties to require franchise fees from providers of communications services, with respect to the provision of communications services, is specifically preempted by the state because of unique circumstances applicable to providers of communications services when compared to other utilities occupying municipal or county roads or rights-of-way. Providers of communications services may provide similar services in a manner that requires the placement of facilities in municipal or county roads or rights-of-way or in a manner that does not require the placement of facilities in such roads or rights-of-way. Although similar communications services may be provided by different means, the state desires to treat providers of communications services in a nondiscriminatory manner and to have the taxes, franchise fees, and other fees, costs, and financial or regulatory exactions paid by or imposed on providers of communications services be competitively neutral. Municipalities and counties retain all existing authority, if any, to collect franchise fees from users or occupants of municipal or county roads or rights-of-way other than providers of communications services, and the provisions of this subsection shall have no effect upon this authority. The provisions of this subsection do not restrict the authority, if any, of municipalities or counties or other governmental entities to receive reasonable rental fees based on fair market value for the use of public lands and buildings on property outside the public roads or rights-of-way for the placement of communications antennas and towers.
(f) Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to paragraph (c), a municipality or county may not levy on a provider of communications services a tax, fee, or other charge or imposition for operating as a provider of communications services within the jurisdiction of the municipality or county which is in any way related to using its roads or rights-of-way. A municipality or county may not require or solicit in-kind compensation, except as otherwise provided in s. 202.24(2)(c)8., provided that the in-kind compensation is not a franchise fee under federal law. Nothing in this paragraph impairs the authority of a municipality or county to request public, educational, or governmental access channels pursuant to s. 610.109. Nothing in this paragraph shall impair any ordinance or agreement in effect on May 22, 1998, or any voluntary agreement entered into subsequent to that date, which provides for or allows in-kind compensation by a telecommunications company.
(g) A municipality or county may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a provider of communications services regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, equipment, technology, qualifications, services, service quality, service territory, and prices of a provider of communications services. A municipality or county may not require any permit for the maintenance, repair, replacement, extension, or upgrade of existing aerial wireline communications facilities on utility poles or for aerial wireline facilities between existing wireline communications facility attachments on utility poles by a communications services provider. However, a municipality or county may require a right-of-way permit for work that involves excavation, closure of a sidewalk, or closure of a vehicular lane or parking lane, unless the provider is performing service restoration to existing facilities. A permit application required by an authority under this section for the placement of communications facilities must be processed and acted upon consistent with the timeframes provided in subparagraphs (7)(d)7., 8., and 9. In addition, a municipality or county may not require any permit or other approval, fee, charge, or cost, or other exaction for the maintenance, repair, replacement, extension, or upgrade of existing aerial lines or underground communications facilities located on private property outside of the public rights-of-way. As used in this section, the term “extension of existing facilities” includes those extensions from the rights-of-way into a customer’s private property for purposes of placing a service drop or those extensions from the rights-of-way into a utility easement to provide service to a discrete identifiable customer or group of customers.
(h) A provider of communications services that has obtained permission to occupy the roads or rights-of-way of an incorporated municipality pursuant to s. 362.01 or that is otherwise lawfully occupying the roads or rights-of-way of a municipality or county shall not be required to obtain consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this paragraph shall be interpreted to limit the power of a municipality or county to adopt or enforce reasonable rules or regulations as provided in this section and consistent with chapters 202, 364, and 610. Any such rules or regulations must be in writing, and registered providers of communications services in the municipality or county must be given at least 60 days’ advance written notice of any changes to the rules and regulations.
(i) Except as expressly provided in this section, this section does not modify the authority of municipalities and counties to levy the tax authorized in chapter 202 or the duties of providers of communications services under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way.
(j) Notwithstanding the provisions of s. 202.19, when a local communications services tax rate is changed as a result of an election made or changed under this subsection, such rate may not be rounded to tenths.
(4) As used in this section, “communications services” and “dealer” have the same meanings ascribed in chapter 202, and “cable service” has the same meaning ascribed in 47 U.S.C. s. 522, as amended.
(5) This section, except subsections (1) and (2) and paragraph (3)(g), does not apply to the provision of pay telephone service on public, municipal, or county roads or rights-of-way.
(6)(a) As used in this subsection, the following definitions apply:
1.a. A “pass-through provider” is any person who places or maintains a communications facility in the roads or rights-of-way of a municipality or county that levies a tax pursuant to chapter 202 and who does not remit taxes imposed by that municipality or county pursuant to chapter 202.
b. Notwithstanding sub-subparagraph a., a person who does not remit taxes imposed by a municipality or county pursuant to chapter 202, but pursuant to s. 202.16(2) sells communications services for resale to a person who sells such services at retail or who integrates such services into communications services sold at retail in that municipality or county and who remits taxes imposed by that municipality or county pursuant to chapter 202, is not a pass-through provider.
2. A “communications facility” is a facility that may be used to provide communications services. Multiple cables, conduits, strands, or fibers located within the same conduit shall be considered one communications facility for purposes of this subsection.
(b) A municipality that levies a tax pursuant to chapter 202 may charge a pass-through provider that places or maintains a communications facility in the municipality’s roads or rights-of-way an annual amount not to exceed $500 per linear mile or portion thereof. A municipality’s roads or rights-of-way do not include roads or rights-of-way that extend in or through the municipality but are state, county, or another authority’s roads or rights-of-way.
(c) A county that levies a tax pursuant to chapter 202 may charge a pass-through provider that places or maintains a communications facility in the county’s roads or rights-of-way, including county roads or rights-of-way within a municipality in the county, an annual amount not to exceed $500 per linear mile or portion thereof. However, a county shall not impose a charge for any linear miles, or portions thereof, of county roads or rights-of-way where a communications facility is placed that extend through any municipality within the county to which the pass-through provider remits a tax imposed pursuant to chapter 202. A county’s roads or rights-of-way do not include roads or rights-of-way that extend in or through the county but are state, municipal, or another authority’s roads or rights-of-way.
(d) The amounts charged pursuant to this subsection shall be based on the linear miles of roads or rights-of-way where a communications facility is placed, not based on a summation of the lengths of individual cables, conduits, strands, or fibers. The amounts referenced in this subsection may be charged only once annually and only to one person annually for any communications facility. A municipality or county shall discontinue charging such amounts to a person that has ceased to be a pass-through provider. Any annual amounts charged shall be reduced for a prorated portion of any 12-month period during which the person remits taxes imposed by the municipality or county pursuant to chapter 202. Any excess amounts paid to a municipality or county shall be refunded to the person upon written notice of the excess to the municipality or county. A municipality or county may require a pass-through provider to provide an annual notarized statement identifying the total number of linear miles of pass-through facilities in the municipality’s or county’s rights-of-way. Upon request from a municipality or county, a pass-through provider must provide reasonable access to maps of pass-through facilities located in the rights-of-way of the municipality or county making the request. The scope of the request must be limited to only those maps of pass-through facilities from which the calculation of the linear miles of pass-through facilities in the rights-of-way can be determined. The request must be accompanied by an affidavit that the person making the request is authorized by the municipality or county to review tax information related to the revenue and mileage calculations for pass-through providers. A request may not be made more than once annually to a pass-through provider.
(e) This subsection does not alter any provision of this section or s. 202.24 relating to taxes, fees, or other charges or impositions by a municipality or county on a dealer of communications services or authorize that any charges be assessed on a dealer of communications services, except as specifically set forth herein. A municipality or county may not charge a pass-through provider any amounts other than the charges under this subsection as a condition to the placement or maintenance of a communications facility in the roads or rights-of-way of a municipality or county by a pass-through provider, except that a municipality or county may impose permit fees on a pass-through provider consistent with paragraph (3)(c).
(f) The charges under this subsection do not apply to communications facilities placed in a municipality’s or county’s rights-of-way prior to the effective date of this subsection with permission from the municipality or county, if any was required, except to the extent the facilities of a pass-through provider were subject to per linear foot or mile charges in effect as of October 1, 2001, in which case the municipality or county may only impose on a pass-through provider charges consistent with paragraph (b) or paragraph (c) for such facilities. Notwithstanding the foregoing, this subsection does not impair any written agreement between a pass-through provider and a municipality or county imposing per linear foot or mile charges for communications facilities placed in municipal or county roads or rights-of-way that is in effect prior to the effective date of this subsection. Upon the termination or expiration of any such written agreement, any charges imposed must be consistent with this section.
(g) The charges authorized in this subsection shall not be applied with respect to any communications facility that is used exclusively for the internal communications of an electric utility or other person in the business of transmitting or distributing electric energy.
(7)(a) This subsection may be cited as the “Advanced Wireless Infrastructure Deployment Act.”
(b) As used in this subsection, the term:
1. “Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in providing wireless services.
2. “Applicable codes” means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address threats of destruction of property or injury to persons, and includes the National Electric Safety Code and the 2017 edition of the Florida Department of Transportation Utility Accommodation Manual.
3. “Applicant” means a person who submits an application and is a wireless provider.
4. “Application” means a request submitted by an applicant to an authority for a permit to collocate small wireless facilities or to place a new utility pole used to support a small wireless facility.
5. “Authority” means a county or municipality having jurisdiction and control of the rights-of-way of any public road. The term does not include the Department of Transportation. Rights-of-way under the jurisdiction and control of the department are excluded from this subsection.
6. “Authority utility pole” means a utility pole owned by an authority in the right-of-way. The term does not include a utility pole owned by a municipal electric utility, a utility pole used to support municipally owned or operated electric distribution facilities, or a utility pole located in the right-of-way within:
a. A retirement community that:
(I) Is deed restricted as housing for older persons as defined in s. 760.29(4)(b);
(II) Has more than 5,000 residents; and
(III) Has underground utilities for electric transmission or distribution.
b. A municipality that:
(I) Is located on a coastal barrier island as defined in s. 161.053(1)(b)3.;
(II) Has a land area of less than 5 square miles;
(III) Has less than 10,000 residents; and
(IV) Has, before July 1, 2017, received referendum approval to issue debt to finance municipal-wide undergrounding of its utilities for electric transmission or distribution.
7. “Collocate” or “collocation” means to install, mount, maintain, modify, operate, or replace one or more wireless facilities on, under, within, or adjacent to a wireless support structure or utility pole. The term does not include the installation of a new utility pole or wireless support structure in the public rights-of-way.
8. “FCC” means the Federal Communications Commission.
9. “Micro wireless facility” means a small wireless facility having dimensions no larger than 24 inches in length, 15 inches in width, and 12 inches in height and an exterior antenna, if any, no longer than 11 inches.
10. “Small wireless facility” means a wireless facility that meets the following qualifications:
a. Each antenna associated with the facility is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of antennas that have exposed elements, each antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet in volume; and
b. All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches, cutoff switches, vertical cable runs for the connection of power and other services, and utility poles or other support structures.
11. “Utility pole” means a pole or similar structure that is used in whole or in part to provide communications services or for electric distribution, lighting, traffic control, signage, or a similar function. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height or less unless an authority grants a waiver for such pole.
12. “Wireless facility” means equipment at a fixed location which enables wireless communications between user equipment and a communications network, including radio transceivers, antennas, wires, coaxial or fiber-optic cable or other cables, regular and backup power supplies, and comparable equipment, regardless of technological configuration, and equipment associated with wireless communications. The term includes small wireless facilities. The term does not include:
a. The structure or improvements on, under, within, or adjacent to the structure on which the equipment is collocated;
b. Wireline backhaul facilities; or
c. Coaxial or fiber-optic cable that is between wireless structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.
13. “Wireless infrastructure provider” means a person who has been certificated under chapter 364 to provide telecommunications service or under chapter 610 to provide cable or video services in this state, or that person’s affiliate, and who builds or installs wireless communication transmission equipment, wireless facilities, or wireless support structures but is not a wireless services provider.
14. “Wireless provider” means a wireless infrastructure provider or a wireless services provider.
15. “Wireless services” means any services provided using licensed or unlicensed spectrum, whether at a fixed location or mobile, using wireless facilities.
16. “Wireless services provider” means a person who provides wireless services.
17. “Wireless support structure” means a freestanding structure, such as a monopole, a guyed or self-supporting tower, or another existing or proposed structure designed to support or capable of supporting wireless facilities. The term does not include a utility pole, pedestal, or other support structure for ground-based equipment not mounted on a utility pole and less than 5 feet in height.
(c) Except as provided in this subsection, an authority may not prohibit, regulate, or charge for the collocation of small wireless facilities in the public rights-of-way or for the installation, maintenance, modification, operation, or replacement of utility poles used for the collocation of small wireless facilities in the public rights-of-way.
(d) An authority may require a registration process and permit fees in accordance with subsection (3). An authority shall accept applications for permits and shall process and issue permits subject to the following requirements:
1. An authority may not directly or indirectly require an applicant to perform services unrelated to the collocation for which approval is sought, such as in-kind contributions to the authority, including reserving fiber, conduit, or pole space for the authority.
2. An applicant may not be required to provide more information to obtain a permit than is necessary to demonstrate the applicant’s compliance with applicable codes for the placement of small wireless facilities in the locations identified in the application. An applicant may not be required to provide inventories, maps, or locations of communications facilities in the right-of-way other than as necessary to avoid interference with other at-grade or aerial facilities located at the specific location proposed for a small wireless facility or within 50 feet of such location.
3. An authority may not:
a. Require the placement of small wireless facilities on any specific utility pole or category of poles;
b. Require the placement of multiple antenna systems on a single utility pole;
c. Require a demonstration that collocation of a small wireless facility on an existing structure is not legally or technically possible as a condition for granting a permit for the collocation of a small wireless facility on a new utility pole except as provided in paragraph (i);
d. Require compliance with an authority’s provisions regarding placement of small wireless facilities or a new utility pole used to support a small wireless facility in rights-of-way under the control of the department unless the authority has received a delegation from the department for the location of the small wireless facility or utility pole, or require such compliance as a condition to receive a permit that is ancillary to the permit for collocation of a small wireless facility, including an electrical permit;
e. Require a meeting before filing an application;
f. Require direct or indirect public notification or a public meeting for the placement of communication facilities in the right-of-way;
g. Limit the size or configuration of a small wireless facility or any of its components, if the small wireless facility complies with the size limits in this subsection;
h. Prohibit the installation of a new utility pole used to support the collocation of a small wireless facility if the installation otherwise meets the requirements of this subsection; or
i. Require that any component of a small wireless facility be placed underground except as provided in paragraph (i).
4. Subject to paragraph (r), an authority may not limit the placement, by minimum separation distances, of small wireless facilities, utility poles on which small wireless facilities are or will be collocated, or other at-grade communications facilities. However, within 14 days after the date of filing the application, an authority may request that the proposed location of a small wireless facility be moved to another location in the right-of-way and placed on an alternative authority utility pole or support structure or placed on a new utility pole. The authority and the applicant may negotiate the alternative location, including any objective design standards and reasonable spacing requirements for ground-based equipment, for 30 days after the date of the request. At the conclusion of the negotiation period, if the alternative location is accepted by the applicant, the applicant must notify the authority of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application. If an agreement is not reached, the applicant must notify the authority of such nonagreement and the authority must grant or deny the original application within 90 days after the date the application was filed. A request for an alternative location, an acceptance of an alternative location, or a rejection of an alternative location must be in writing and provided by electronic mail.
5. An authority shall limit the height of a small wireless facility to 10 feet above the utility pole or structure upon which the small wireless facility is to be collocated. Unless waived by an authority, the height for a new utility pole is limited to the tallest existing utility pole as of July 1, 2017, located in the same right-of-way, other than a utility pole for which a waiver has previously been granted, measured from grade in place within 500 feet of the proposed location of the small wireless facility. If there is no utility pole within 500 feet, the authority shall limit the height of the utility pole to 50 feet.
6. The installation by a communications services provider of a utility pole in the public rights-of-way, other than a utility pole used to support a small wireless facility, is subject to authority rules or regulations governing the placement of utility poles in the public rights-of-way.
7. Within 14 days after receiving an application, an authority must determine and notify the applicant by electronic mail as to whether the application is complete. If an application is deemed incomplete, the authority must specifically identify the missing information. An application is deemed complete if the authority fails to provide notification to the applicant within 14 days.
8. An application must be processed on a nondiscriminatory basis. A complete application is deemed approved if an authority fails to approve or deny the application within 60 days after receipt of the application. If an authority does not use the 30-day negotiation period provided in subparagraph 4., the parties may mutually agree to extend the 60-day application review period. The authority shall grant or deny the application at the end of the extended period. A permit issued pursuant to an approved application shall remain effective for 1 year unless extended by the authority.
9. An authority must notify the applicant of approval or denial by electronic mail. An authority shall approve a complete application unless it does not meet the authority’s applicable codes. If the application is denied, the authority must specify in writing the basis for denial, including the specific code provisions on which the denial was based, and send the documentation to the applicant by electronic mail on the day the authority denies the application. The applicant may cure the deficiencies identified by the authority and resubmit the application within 30 days after notice of the denial is sent to the applicant. The authority shall approve or deny the revised application within 30 days after receipt or the application is deemed approved. The review of a revised application is limited to the deficiencies cited in the denial. If an authority provides for administrative review of the denial of an application, the review must be complete and a written decision issued within 45 days after a written request for review is made. A denial must identify the specific code provisions on which the denial is based. If the administrative review is not complete within 45 days, the authority waives any claim regarding failure to exhaust administrative remedies in any judicial review of the denial of an application.
10. An applicant seeking to collocate small wireless facilities within the jurisdiction of a single authority may, at the applicant’s discretion, file a consolidated application and receive a single permit for the collocation of up to 30 small wireless facilities. If the application includes multiple small wireless facilities, an authority may separately address small wireless facility collocations for which incomplete information has been received or which are denied.
11. An authority may deny an application to collocate a small wireless facility or place a utility pole used to support a small wireless facility in the public rights-of-way if the proposed small wireless facility or utility pole used to support a small wireless facility:
a. Materially interferes with the safe operation of traffic control equipment.
b. Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes.
c. Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement.
d. Materially fails to comply with the 2017 edition of the Florida Department of Transportation Utility Accommodation Manual.
e. Fails to comply with applicable codes.
f. Fails to comply with objective design standards authorized under paragraph (r).
12. An authority may adopt by ordinance provisions for insurance coverage, indemnification, force majeure, abandonment, authority liability, or authority warranties. Such provisions must be reasonable and nondiscriminatory. An authority may require a construction bond to secure restoration of the postconstruction rights-of-way to the preconstruction condition. However, such bond must be time-limited to not more than 18 months after the construction to which the bond applies is completed. For any financial obligation required by an authority allowed under this section, the authority shall accept a letter of credit or similar financial instrument issued by any financial institution that is authorized to do business within the United States, provided that a claim against the financial instrument may be made by electronic means, including by facsimile. A provider of communications services may add an authority to any existing bond, insurance policy, or other relevant financial instrument, and the authority must accept such proof of coverage without any conditions other than consent to venue for purposes of any litigation to which the authority is a party. An authority may not require a communications services provider to indemnify it for liabilities not caused by the provider, including liabilities arising from the authority’s negligence, gross negligence, or willful conduct.
13. Collocation of a small wireless facility on an authority utility pole does not provide the basis for the imposition of an ad valorem tax on the authority utility pole.
14. An authority may reserve space on authority utility poles for future public safety uses. However, a reservation of space may not preclude collocation of a small wireless facility. If replacement of the authority utility pole is necessary to accommodate the collocation of the small wireless facility and the future public safety use, the pole replacement is subject to make-ready provisions and the replaced pole shall accommodate the future public safety use.
15. A structure granted a permit and installed pursuant to this subsection shall comply with chapter 333 and federal regulations pertaining to airport airspace protections.
(e) An authority may not require any permit or other approval or require fees or other charges, costs, or other exactions for:
1. Routine maintenance, the performance of service restoration work on existing facilities, or repair work, including, but not limited to, emergency repairs of existing facilities or extensions of such facilities for providing communications services to customers;
2. Replacement of existing wireless facilities with wireless facilities that are substantially similar or of the same or smaller size; or
3. Installation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable codes by or for a communications services provider authorized to occupy the rights-of-way and who is remitting taxes under chapter 202. An authority may require an initial letter from or on behalf of such provider, which is effective upon filing, attesting that the micro wireless facility dimensions comply with the limits of this subsection. The authority may not require any additional filing or other information as long as the provider is deploying the same, a substantially similar, or a smaller size micro wireless facility equipment.
Notwithstanding this paragraph, an authority may require a right-of-way permit for work that involves excavation, closure of a sidewalk, or closure of a vehicular lane or parking lane, unless the provider is performing service restoration on an existing facility and the work is done in compliance with the 2017 edition of the Florida Department of Transportation Utility Accommodation Manual. An authority may require notice of such work within 30 days after restoration and may require an after-the-fact permit for work which would otherwise have required a permit.
(f) Collocation of small wireless facilities on authority utility poles is subject to the following requirements:
1. An authority may not enter into an exclusive arrangement with any person for the right to attach equipment to authority utility poles.
2. The rates and fees for collocations on authority utility poles must be nondiscriminatory, regardless of the services provided by the collocating person.
3. The rate to collocate small wireless facilities on an authority utility pole may not exceed $150 per pole annually.
4. Agreements between authorities and wireless providers that are in effect on July 1, 2017, and that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on authority utility poles, remain in effect, subject to applicable termination provisions. The wireless provider may accept the rates, fees, and terms established under this subsection for small wireless facilities and utility poles that are the subject of an application submitted after the rates, fees, and terms become effective.
5. A person owning or controlling an authority utility pole shall offer rates, fees, and other terms that comply with this subsection. By the later of January 1, 2018, or 3 months after receiving a request to collocate its first small wireless facility on a utility pole owned or controlled by an authority, the person owning or controlling the authority utility pole shall make available, through ordinance or otherwise, rates, fees, and terms for the collocation of small wireless facilities on the authority utility pole which comply with this subsection.
a. The rates, fees, and terms must be nondiscriminatory and competitively neutral and must comply with this subsection.
b. For an authority utility pole that supports an aerial facility used to provide communications services or electric service, the parties shall comply with the process for make-ready work under 47 U.S.C. s. 224 and implementing regulations. The good faith estimate of the person owning or controlling the pole for any make-ready work necessary to enable the pole to support the requested collocation must include pole replacement if necessary.
c. For an authority utility pole that does not support an aerial facility used to provide communications services or electric service, the authority shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including necessary pole replacement, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, must be completed within 60 days after written acceptance of the good faith estimate by the applicant. Alternatively, an authority may require the applicant seeking to collocate a small wireless facility to provide a make-ready estimate at the applicant’s expense for the work necessary to support the small wireless facility, including pole replacement, and perform the make-ready work. If pole replacement is required, the scope of the make-ready estimate is limited to the design, fabrication, and installation of a utility pole that is substantially similar in color and composition. The authority may not condition or restrict the manner in which the applicant obtains, develops, or provides the estimate or conducts the make-ready work subject to usual construction restoration standards for work in the right-of-way. The replaced or altered utility pole shall remain the property of the authority.
d. An authority may not require more make-ready work than is required to meet applicable codes or industry standards. Fees for make-ready work may not include costs related to preexisting damage or prior noncompliance. Fees for make-ready work, including any pole replacement, may not exceed actual costs or the amount charged to communications services providers other than wireless services providers for similar work and may not include any consultant fee or expense.
(g) For any applications filed before the effective date of ordinances implementing this subsection, an authority may apply current ordinances relating to placement of communications facilities in the right-of-way related to registration, permitting, insurance coverage, indemnification, force majeure, abandonment, authority liability, or authority warranties. Permit application requirements and small wireless facility placement requirements, including utility pole height limits, that conflict with this subsection must be waived by the authority. An authority may not institute, either expressly or de facto, a moratorium, zoning-in-progress, or other mechanism that would prohibit or delay the filing, receiving, or processing of registrations, applications, or issuing of permits or other approvals for the collocation of small wireless facilities or the installation, modification, or replacement of utility poles used to support the collocation of small wireless facilities.
(h) Except as provided in this section or specifically required by state law, an authority may not adopt or enforce any regulation on the placement or operation of communications facilities in the rights-of-way by a provider authorized by state law to operate in the rights-of-way and may not regulate any communications services or impose or collect any tax, fee, or charge not specifically authorized under state law. This paragraph does not alter any law regarding an authority’s ability to regulate the relocation of facilities.
(i)1. In an area where an authority has required all public utility lines in the rights-of-way to be placed underground, a wireless provider must comply with written, objective, reasonable, and nondiscriminatory requirements that prohibit new utility poles used to support small wireless facilities if:
a. The authority, at least 90 days prior to the submission of an application, has required all public utility lines to be placed underground;
b. Structures that the authority allows to remain above ground are reasonably available to wireless providers for the collocation of small wireless facilities and may be replaced by a wireless provider to accommodate the collocation of small wireless facilities; and
c. A wireless provider may install a new utility pole in the designated area in the right-of-way that otherwise complies with this subsection and it is not reasonably able to provide wireless service by collocating on a remaining utility pole or other structure in the right-of-way.
2. For small wireless facilities installed before an authority adopts requirements that public utility lines be placed underground, an authority adopting such requirements must:
a. Allow a wireless provider to maintain the small wireless facilities in place subject to any applicable pole attachment agreement with the pole owner; or
b. Allow the wireless provider to replace the associated pole within 50 feet of the prior location in accordance with paragraph (r).
(j) A wireless infrastructure provider may apply to an authority to place utility poles in the public rights-of-way to support the collocation of small wireless facilities. The application must include an attestation that small wireless facilities will be collocated on the utility pole or structure and will be used by a wireless services provider to provide service within 9 months after the date the application is approved. The authority shall accept and process the application in accordance with subparagraph (d)6. and any applicable codes and other local codes governing the placement of utility poles in the public rights-of-way.
(k) This subsection does not limit a local government’s authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. s. 332(c)(7), the requirements for facility modifications under 47 U.S.C. s. 1455(a), or the National Historic Preservation Act of 1966, as amended, and the regulations adopted to implement such laws. An authority may enforce local codes, administrative rules, or regulations adopted by ordinance in effect on April 1, 2017, which are applicable to a historic area designated by the state or authority. An authority may enforce pending local ordinances, administrative rules, or regulations applicable to a historic area designated by the state if the intent to adopt such changes has been publicly declared on or before April 1, 2017. An authority may waive any ordinances or other requirements that are subject to this paragraph.
(l) This subsection does not authorize a person to collocate or attach wireless facilities, including any antenna, micro wireless facility, or small wireless facility, on a privately owned utility pole, a utility pole owned by an electric cooperative or a municipal electric utility, a privately owned wireless support structure, or other private property without the consent of the property owner.
(m) The approval of the installation, placement, maintenance, or operation of a small wireless facility pursuant to this subsection does not authorize the provision of any voice, data, or video communications services or the installation, placement, maintenance, or operation of any communications facilities other than small wireless facilities in the right-of-way.
(n) This subsection does not affect provisions relating to pass-through providers in subsection (6).
(o) This subsection does not authorize a person to collocate or attach small wireless facilities or micro wireless facilities on a utility pole, unless otherwise permitted by federal law, or erect a wireless support structure in the right-of-way located within a retirement community that:
1. Is deed restricted as housing for older persons as defined in s. 760.29(4)(b);
2. Has more than 5,000 residents; and
3. Has underground utilities for electric transmission or distribution.
This paragraph does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities, provided that once aerial facilities are converted to underground facilities, any such collocation or construction shall be only as provided by the municipality’s underground utilities ordinance.
(p) This subsection does not authorize a person to collocate or attach small wireless facilities or micro wireless facilities on a utility pole, unless otherwise permitted by federal law, or erect a wireless support structure in the right-of-way located within a municipality that:
1. Is located on a coastal barrier island as defined in s. 161.053(1)(b)3.;
2. Has a land area of less than 5 square miles;
3. Has fewer than 10,000 residents; and
4. Has, before July 1, 2017, received referendum approval to issue debt to finance municipal-wide undergrounding of its utilities for electric transmission or distribution.
This paragraph does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities, provided that once aerial facilities are converted to underground facilities, any such collocation or construction shall be only as provided by the municipality’s underground utilities ordinance.
(q) This subsection does not authorize a person to collocate small wireless facilities or micro wireless facilities on an authority utility pole or erect a wireless support structure in a location subject to covenants, conditions, restrictions, articles of incorporation, and bylaws of a homeowners’ association. This paragraph does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities.
(r) An authority may require wireless providers to comply with objective design standards adopted by ordinance. The ordinance may only require:
1. A new utility pole that replaces an existing utility pole to be of substantially similar design, material, and color;
2. Reasonable spacing requirements concerning the location of a ground-mounted component of a small wireless facility which does not exceed 15 feet from the associated support structure; or
3. A small wireless facility to meet reasonable location context, color, camouflage, and concealment requirements, subject to the limitations in this subsection; and
4. A new utility pole used to support a small wireless facility to meet reasonable location context, color, and material of the predominant utility pole type at the proposed location of the new utility pole.
Such design standards under this paragraph may be waived by the authority upon a showing that the design standards are not reasonably compatible for the particular location of a small wireless facility or utility pole or are technically infeasible or that the design standards impose an excessive expense. The waiver must be granted or denied within 45 days after the date of the request.
(8)(a) Any person aggrieved by a violation of this section may bring a civil action in a United States District Court or in any other court of competent jurisdiction.
(b) The court may:
1. Grant temporary or permanent injunctions on terms as it may deem reasonable to prevent or restrain violations of this section; and
2. Direct the recovery of full costs, including awarding reasonable attorney fees, to the party who prevails.
(9) All work in the authority’s rights-of-way under this section must comply with the 2017 edition of the Florida Department of Transportation Utility Accommodation Manual.
...Preemption by Florida State Law
Under Florida Statutes § 364.01(2), the Florida Public Service Commission ("FPSC") has jurisdiction
over the regulation of telecommunications companies within the state. Local governments are preempted
from regulating telecommunications companies except to the extent provided in § 337.401, which is the
provision of state law that historically has governed municipalities' power to regulate and tax
telecommunications companies' use of the public rights-of-way. Our analysis of § 337.401 in this case is
complicated somewhat by the fact that the statute has been amended twice since these lawsuits were filed,
and future amendments are scheduled. When these lawsuits were initiated in August 1997 and April 1998,
the text of § 337.401 had stood unaltered since 1994. In May 1998, however, § 337.401 was substantially
amended. See 1998 Fla. Laws ch. 98-147. The district court duly took the 1998 amendments to § 337.401
into account when deciding the state-law preemption question in its summary-judgment orders, which issued
in January and September of 1999. After the district court had entered its final judgment in both cases, the
Florida legislature amended § 337.401 again with the passage of the Communications Services Tax
Simplification Law ("Simplification Law"), 2000 Fla. Laws ch. 00-260. In order to understand the changes
envisioned in the Simplification Law, we must begin with an assessment of the law that predated it.
Under the version of § 337.401 as amended in 1998, it was clear that municipalities were prohibited
from exercising their authority to manage the public rights-of-way in such a way as to exert regulatory control
over matters that fell under the exclusive jurisdiction of the FPSC or the Federal Communications
Commission ("FCC"). Fla. Stat. § 337.401(6) (Supp.1998)....
...Municipalities could, however, require
telecommunications companies to pay fees of up to "one percent of the gross receipts on recurring local
service revenues for services provided within the corporate limits of the municipality" as consideration for
the right to occupy the public rights-of-way. Id. at § 337.401(3)....
...o pay fees based on the number of miles
of cable laid in the public rights-of-way, as well as certain other fees as compensation for the direct, physical
use of the rights-of-way and the administrative costs of regulating the rights-of-way. Id. at § 337.401(4).
The impetus for the Simplification Law appears to have been, in large part, the need to bring Florida
law into compliance with the Telecommunications Act of 1996. To this end, the Simplification Law mapped
out a complicated schedule of amendments to the Florida Statutes, including "transitional" amendments to
§ 337.401, which took effect on 1 January 2001. 2000 Fla. Laws ch. 00-260, § 50; Fla. Stat. § 337.401
(Supp.2001). The transitional version of § 337.401 severely curtails municipal authority over
telecommunications companies by prohibiting municipalities from requiring telecommunications companies
to enter into a "license, franchise, or other agreement" as a condition of using the public rights-of-way, id.
at § 337.401(3)(a), and by requiring that any municipal regulations pertaining to telecommunications
companies' use of the public rights-of-way "must be related to the placement or maintenance of facilities in
such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters
necessary to manage the roads or rights-of-way," id. at § 337.401(3)(b).
The other significant feature of the transitional version of § 337.401, and the feature that indicates
why a transitional provision is necessary, is the requirement that each municipality make an election that will
affect the rate it will be able to charge if the local communications services tax ("LCST"), authorized under
§ 11 of the Simplification Law, takes effect on 1 October 2001. Section 337.401(3)(c)(1) requires
municipalities to choose whether they will collect certain limited permit fees from communications providers
for use of the public rights-of-way; if a municipality chooses to charge permit fees, it must reduce the rate
of its LCST by 0.12%, but if it chooses not to charge such fees, it may increase the rate by 0.12%. Because
the LCST does not take effect until 1 October 2001, if it takes effect at all, the transitional § 337.401 carries
over, in subsections (3)(e) and (3)(f), the language of the 1998 version's subsections (3) and (4) pertaining
to taxes and fees that may be levied on telecommunications companies in the meantime. Section 337.401 is
scheduled to be amended again on 1 October 2001, removing the language in subsections (3)(e) and (3)(f)
entirely to reflect the implementation of the new LCST scheme. See 2000 Fla. Laws ch. 00-260, § 51.
The LCST is intended to replace the patchwork system by which each municipality had set its own
formula (within the bounds of prior versions of § 337.401) for how it would tax telecommunications
companies' use of the public rights-of-way....
...re for the contingency that the REC
would not be able to establish acceptable rates for the LCSTs: unless the Florida legislature acts before 30
June 2001, on that date section 58 of the Simplification Law will repeal the transitional amendments to §
337.401, as well as the 1 October 2001 amendments to § 337.401 and the other sections implementing the
LCST, and § 59 will reinstate the 1998 version of § 337.401 (with only minor changes) on the same day.
Presumably, if the REC is successful in setting the rates for the LCSTs, the Florida Legislature will repeal
§§ 58 and 59 before 30 June 2001 so that the October amendments, which comprise the...
... (quoting Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972)).
Accordingly, we can only conduct our state-law preemption analysis under the version of the statute that is
currently in effect-the transitional version of § 337.401.3
1. Preemption of Specific Sections of Coral Springs Ordinance 97-114 by the Transitional Version of
§ 337.401
As a preliminary matter, it is necessary to define some of the key terms as they are used in the state
law and in the ordinance. Section 337.401 addresses municipal regulation of "telecommunications
companies," which are defined in § 364.02(12) as "every corporation, partnership, and person ......
...tion 20-1(5), to refer to both
telecommunications facilities and private communications systems.
It is clear from these definitions that provisions of ordinance 97-114 governing "telecommunications
facilities" are subject to preemption by § 337.401's limitations on municipal power to regulate
"telecommunications companies." Provisions of the ordinance regulating "private communications systems,"
however, do not fall within the penumbra of § 337.401....
...a challenged statute to render the appeal of
that judgment moot, see Fillyaw, 958 F.2d at 1519-20, in this case, a live controversy remains as to
whether the Cities' ordinances are preempted under the Simplification Law's transitional amendments to §
337.401.
in terms of its effect on telecommunications facilities, as that term is defined in the ordinance.
We address each relevant section of the ordinance in turn.
Section 20-2....
...facilities to obtain franchises prior to providing telecommunications services within Coral Springs. The
franchise requirements in subsections (1) and (2) and the license requirements for telecommunications
facilities in subsection (3) are flatly preempted by § 337.401(3)(a), which prohibits municipalities from
requiring telecommunications companies to enter licenses, franchises, or other agreements as a condition of
using the public right-of-way to provide telecommunications services.
Section 20-3....
...The franchise fee, which is established in section 20-21(5)(A) as 10% of the
gross revenues generated by the operator of the telecommunications facility's use of the public rights-of-way,
is obviously preempted by the prohibition of franchises in § 337.401(3)(a)....
...ts to the City caused by burdens
users place upon the right-of-way," and is to be established on a per-linear-foot basis for telecommunications
facilities located in the rights-of-way. This type of a fee is specifically authorized by state law, but §
337.401(3)(f) establishes several factors that limit the maximum permissible amount of the fee. Thus, the
occupancy fee is not facially void under state law, but there remains a question as to whether Coral Springs
has in fact limited the rate of the occupancy tax it exacts to comply with the state-law limits outlined in §
337.401(3)(f). Because neither party has presented evidence of whether the actual amount of the occupancy
fee Coral Springs has charged exceeds that permitted in § 337.401(3)(f), neither party is entitled to summary
judgment on the issue of whether the occupancy tax, as applied, is preempted by state law.
Section 20-4....
...governing the installation, construction, relocation, and
maintenance of telecommunications facilities. We find, with the exception of two subsections, that section
20-4 is not preempted by state law because its provisions fall within the ambit of § 337.401(3)(b), which
reserves to municipalities the right to adopt rules or regulations governing the roads and rights-of-way, so
long as they are "related to the placement or maintenance of facilities in such roads or rights-of-way, [are]
reasonable and nondiscriminatory, and ......
...on
and repair and the purposes for which the plant is being constructed, operated or repaired." As stated
previously, under § 364.01(2), local governments are preempted from regulating telecommunications
companies except to the extent provided in § 337.401. While Coral Springs's reservation of the power to
request information from operators of telecommunications facilities regarding their future plans for use of
the rights-of-way constitutes a reasonable regulation of the rights-of-way under § 337.401(3)(b), the second
sentence of subsection (4), by its terms, "includes," but is not limited to, requests for information concerning
the rights-of-way....
...This subsection also prohibits
telecommunications facility operators from discriminating or retaliating against individuals or the City for
the exercise of any legally protected right. The requirements in subsection (7) clearly exceed the
municipality's authority under § 337.401(3)(b) to issue regulations "related to the placement or maintenance
of facilities in [its] roads or rights-of-way." This subsection includes a "savings clause," however, which
states that these provisions are "[s]ubject to State and Federal law limitations ......
...erms of a state
statute." Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir.1993) (emphasis omitted).
5
BellSouth has not claimed that Coral Springs is, in fact, enforcing the terms of this subsection in a
manner inconsistent with § 337.401.
Springs is granted the authority to regulate these matters in the future.
Section 20-5....
...mance bonds, and a security fund that are required of
telecommunications companies seeking to use the public rights-of-way. These are reasonable regulations
directly related to the management of the rights-of-way, and are therefore authorized under § 337.401(3)(b).
Section 20-6....
...nce but do not actually regulate
telecommunications providers; these sections are not preempted by state law.
Subsections (2), (3), (5), (6), (12), and (14) of section 20-6 pertain to licenses and franchises, and are
therefore preempted by § 337.401(3)(a), which prohibits these arrangements to the extent they apply to
telecommunications companies.
Subsection (4) "Penalties" provides for a fine to be levied against any person who violates the
ordinance. While the fine may not be used to enforce any section of the ordinance that has been found to be
preempted, the power to fine is a police power, and therefore is reserved to the municipality under §
337.401(3)(b).
Subsection (8) "Access to books and records" grants Coral Springs access to all books and records
in a telecommunications company's possession pertaining to "the construction, operation, or repair of the
communications fa...
...from the operation of the communications facility." Coral Springs's power to access documents pertaining
to the construction and repair of communications facilities is necessary to its direct regulation of the
rights-of-way, and is therefore authorized under § 337.401(3)(b); however, under state law it does not have
a right to access books and records relating to "operations," as that term extends far beyond those matters
directly related to the rights-of-way. Further, because the franchise and license fee as applied to
telecommunications companies is preempted under § 337.401(3)(a), Coral Springs's ability to request
financial information for the purpose of determining compliance with such a fee is also preempted.
Subsection (9) "Retention of Records," and subsection (10) "Reports," require the operators of
telecommunications facilities to retain records and prepare reports as requested to aid Coral Springs in
determining if the facilities are in compliance with the ordinance. These requirements are valid under §
337.401(3)(b) as they are necessary to Coral Springs's regulation of the rights-of-way.
Subsection (11) "Maps" requires operators of telecommunications facilities to "maintain accurate
maps and improvement plans which show the location, size, and a general description of all facilities installed
in the rights-of-way." This requirement is valid under § 337.401(3)(b) as a reasonable means by which the
City can ensure that future construction in the rights-of-way does not interfere with or damage existing
communications lines and facilities.
Section 20-7....
...should file for a franchise or license, and subsection (2) states that persons holding franchises or licenses at
the time of the ordinance's enactment may continue to operate under the terms of the franchise or license until
its expiration. These subsections are preempted by § 337.401(3)(a), which prohibits municipalities from
requiring telecommunications companies to enter franchises or licenses....
...undergo and the criteria an applicant must meet in order to obtain a franchise to operate a telecommunications
facility in the rights-of-way in Coral Springs, and also sets out the formula for the calculation of the franchise
fee. While Coral Springs does have the right under § 337.401(3)(a) to request some of the information and
credentials from a telecommunications company that it requests under section 20-21, it clearly may not do
so in the context of a franchise application, and it may not charge a franchise fee. This section is preempted
in its entirety.
2. Preemption of Specific Sections of Palm Beach Ordinance 16-97 by the Transitional Version of §
337.401
The scope of ordinance 16-97 is significantly broader than that of ordinance 97-114, as it regulates
telecommunications facilities and services, private communications systems, cable systems, and open video
systems. The only provisions of the ordinance subject to preemption by § 337.401, however, are those
pertaining to the regulation of telecommunications facilities and services, as those terms are defined in the
ordinance,6 and so our analysis of the ordinance is limited to its effects on those areas.
Title I, Section 2. Franchise Required: This section requires the operators of telecommunications
facilities to obtain franchises prior to providing telecommunications services within Palm Beach. It is
preempted by § 337.401(3)(a), which explicitly prohibits municipalities from requiring telecommunications
companies to enter licenses, franchises, or other agreements as a condition of using the public right-of-way
to provide telecommunications services.
Title I, Section 3....
...the costs
of any experts or consultants used in evaluating the application; (iv) an annual occupancy fee; and (v) a
franchise fee, established in title II of the ordinance.
All of the fees associated with a franchise would be preempted by § 337.401(3)(a), which prohibits
municipalities from imposing franchise agreements on telecommunications companies....
...e on the terms of the annual occupancy fee, other than to state in
subsection 3.3 that it "may be charged on a gross revenue or per-linear-foot basis." Subject to limitations,
an occupancy fee based on gross revenues is permitted under state law in § 337.401(3)(e), and a fee based
on distance of cable laid is permitted in § 337.401(3)(f). The occupancy fee, therefore, is not facially
preempted, but may be preempted if the actual fees charged by Palm Beach exceed the limitations in §
337.401....
...telecommunications facilities. With three exceptions, section 4 is not preempted by state law because its
provisions are reasonable rules or regulations "related to the placement or maintenance of facilities in such
roads or rights-of-way" permitted under § 337.401(3)(b).
The first preempted provision is subsection 4.2.6, which reads:
Every operator of a communications facility shall make available to other franchisees or licensees
any of its conduits that is excess, so long as it is excess, at a reasonable, non-discriminatory rental
fee.......
...rge.
This requirement places a potentially substantial burden on telecommunications companies that, while
perhaps furthering Palm Beach's policies for the development of its technological infrastructure, goes far
beyond the authority allotted it in § 337.401(3)(b) to regulate "only those matters necessary to manage the
roads or rights-of-way."
The second preempted subsection, 4.4, states:
Every communications facility shall be subject to the right of periodic inspection and t...
...on, operation and
repair and the purposes for which the plant is being constructed, operated or repaired.
While Palm Beach does have certain rights to inspect the telecommunications facilities and request
information relating to them, under § 337.401(3)(b) it may only do so with respect to matters concerning the
physical use and management of the rights-of-way....
...Finally, the subsection requires that telecommunications
facilities operators not deny access or levy different rates on customers based on income. The requirements
in subsection 4.7 go far beyond matters necessary to regulate the physical rights-of-way, and therefore exceed
the municipality's authority under § 337.401(3)(b).
Title I, Section 5....
...mance bonds, and a security fund that are required of
telecommunications companies seeking to use the public rights-of-way. These are reasonable regulations
directly related to the management of the rights-of-way, and are therefore authorized under § 337.401(3)(b).
Title I, Section 6....
...rcement of the
ordinance but do not actually regulate telecommunications providers; these sections are not preempted by
state law.
Subsections 6.2, 6.3, 6.5, 6.6, and 6.12 pertain to licenses and franchises, and are therefore preempted
by § 337.401(3)(a), which prohibits these arrangements to the extent they apply to telecommunications
companies.
Subsection 6.4 "Penalties" provides for a fine to be levied against any person who violates the
ordinance. While the fine may not be used to enforce any section of the ordinance that has been found to be
preempted, the power to fine is a police power, and therefore is reserved to the municipality under §
337.401(3)(b).
Subsection 6.8 "Access to books and records" grants Palm Beach access to all books and records in
a telecommunications company's possession "related to the construction, operation, or repair of the
communications facility,...
...operation
of the communications facility." Palm Beach's power to access documents pertaining to the construction and
repair of communications facilities is necessary to its direct regulation of the rights-of-way, and is therefore
authorized under § 337.401(3)(b); however, under state law it does not have a right to access books and
records relating to operations or revenues, as those matters are not directly related to the rights-of-way.
Subsection 6.9 "Retention of Records," and su...
...n 6.10 "Reports," require the operators of
telecommunications facilities to retain records and prepare reports as requested to aid Palm Beach in
determining if the facilities are in compliance with the ordinance. These requirements are valid under §
337.401(3)(b) as they are necessary to Palm Beach's regulation of the rights-of-way.
Subsection 6.11 "Maps" requires operators of telecommunications facilities to "maintain accurate
maps and improvement plans which show the location, size, and a general description of all facilities installed
in the public rights-of-way." This requirement is valid under § 337.401(3)(b) as a reasonable means by which
the City can ensure that future construction in the rights-of-way does not interfere with or damage existing
communications lines and facilities.
Title I, Section 7....
...should file for a franchise or license, and subsection 7.2 states that persons holding franchises or licenses at
the time of the ordinance's enactment may continue to operate under the terms of the franchise or license until
its expiration. These subsections are preempted by § 337.401(3)(a), which prohibits municipalities from
requiring telecommunications companies to enter franchises or licenses....
...undergo and the criteria an applicant must meet in order to obtain a franchise to operate a telecommunications
facility in the rights-of-way in Palm Beach, and also sets out the formula for the calculation of the franchise
fee. While Palm Beach does have the right under § 337.401(3)(a) to request some of the information and
credentials from a communications company that it requests under this section, it clearly may not do so in
the context of a franchise application, and it may not charge a franchise fee....
...preempted by Florida state law and by § 253 of the Telecommunications Act of 1996. BellSouth
cross-appeals the district court's decisions not to find the ordinances preempted in their entirety. We hold that
specific subsections of the ordinances are preempted by § 337.401 of the Florida Statutes, but that others are
valid exercises of local authority under the Florida scheme....
...§ 364.01. This exclusive jurisdiction of the PSC preempts local control over telecommunication companies, except for the regulation of use of rights-of-way and collection of a reasonable fee for the use thereof. Fla. Stat. § 364.01(2); Fla. Stat. § 337.401....
...m telecommunications companies for the granting of permission to occupy municipal rights-of-way to one percent of the gross receipts on recurring local service revenue for services provided within the corporate limits of the municipality. Fla. Stat. § 337.401(3) and (5)....
...In addition, in 1998, the Florida legislature amended this section to explicitly forbid local governments from "asserting or exercising regulatory control" over telecommunications companies regarding operations, systems, qualifications, services, service quality, service territory, and pricing. Fla. Stat. § 337.401(6)....
...a city on May 22, 1998, "shall not be required to obtain additional consent to continue such lawful occupation of those roads or rights-of-way," except that a city may impose a fee or reasonably regulate *1309 the use of the rights-of-way. Fla Stat. § 337.401(7)....
...Compensation Required: This section clearly goes beyond state law which limits the allowable fee to one percent of the gross receipts on recurring local service revenue for services provided within the corporate limits of the municipality. Fla. Stat. § 337.401(3) and (5)....
...The only exception within Section 20-4 is the second sentence of subsection 20-4(4). While the City may inspect facilities within the rights-of-way, the City does not have the authority to request information regarding systems, plans, or purposes of the telecommunications facilities. See Fla. Stat. § 337.401(6)....
...However, the City cannot use these provisions to enforce any part of the Ordinance deemed preempted by this opinion. Section 20-7. Transitional Provisions: This Section is also valid in its entirety. Of course, to the extent that these transitional provisions conflict with Florida Statutes Section 337.401(7) regarding providers lawfully occupying the rights-of-way in Coral Springs, the state law will prevail....
...Subsection (1) concerns the contents of an application for a franchise. Subsections (1)(C), (D) and (E) impose a requirement that the applicant submit proof of its financial, technical, and legal qualifications. This type of requirement is preempted by Florida Statutes Section 337.401(7) which reserves to the Public Service Commission the regulation of "qualifications." In addition, the City of Dallas opinion specifically holds that such requirements are unrelated to the use of the rights-of-way, and thus beyond the scope of municipal authority....
...Subsection (5) concerns compensation, and thus all of subsection 20-21(5) must fail as state law limits such compensation, with the exception of subsection 20-21(5)(E) mandating that the compensation paid must be publicly disclosed by the City. As discussed above, the only fees that may be required are the one percent fee in Section 337.401(3) and the construction fee allowed by Section 337.401(4)....
...§ 253(b). While states could delegate such authority to local governments, Florida has not done so. City of Dallas, 8 F.Supp.2d at 591. Rather, Florida law gives the exclusive authority over "services" to the Public Service Commission. *1311 Fla. Stat. Section 337.401(6)....
...do's prohibitions continued until resolution of the dispute. See Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987). Oviedo also contends that Alafaya failed to demonstrate a likelihood of success on the merits. We disagree. Subsection 337.401(1), Florida Statutes (1995), allows Oviedo to prescribe and enforce reasonable rules or regulations regarding the installation of utility lines and structures in a right of way. Subsection 337.401(2) allows Oviedo to grant the use of a right of way to a utility in accordance with such rules or regulations as Oviedo may adopt....
...*208 The preliminary injunction under review enjoins Oviedo "from withholding development on the grounds that Alafaya has not entered into a franchise agreement with the City." Because Oviedo is still free to adopt reasonable rules and regulations pertaining to the use of its rights of way in accordance with section 337.401, the injunction entered does not unduly hamper Oviedo's regulatory powers....
...§ 364.01. This exclusive jurisdiction of the PSC preempts local control over telecommunication companies, except for the regulation of use of rights-of-way and collection of a reasonable fee for the use thereof. Fla. Stat. § 364.01(2); Fla. *1353 Stat. § 337.401....
...m telecommunications companies for the granting of permission to occupy municipal rights-of-way to one percent of the gross receipts on recurring local service revenue for services provided within the corporate limits of the municipality. Fla. Stat. § 337.401(3) and (5)....
...[6] In addition, in 1998, the Florida legislature amended this section to explicitly forbid local governments from "asserting or exercising regulatory control" over telecommunications companies regarding operations, systems, qualifications, services, service quality, service territory, and pricing. Fla. Stat. § 337.401(6)....
...ity on May 22, 1998, "shall not be required to obtain additional consent to continue such lawful occupation of those roads or rights-of-way," except that a municipality may impose a fee or reasonably regulate the use of the rights-of-way. Fla. Stat. § 337.401(7)....
...in both federal law and state law. While Bellsouth relies upon the otherwise exclusive jurisdiction provided to the Florida Public Service Commission, Chapter 364 specifically states that "the authority and powers granted in Sections 166.231(9) and 337.401" are not affected by this Chapter....
...regulate the use of its rights-of-way, and cannot collect more than one percent of the gross receipts on recurring local service revenue for services provided *1354 within the municipality limits, in addition to the costs allowed by Florida Statutes Section 337.401(4)....
...allowable compensation for use of rights-of-way to one percent of the gross receipts on recurring local service revenue for services provided within the corporate limits of the municipality, plus certain costs of disruption and oversight. Fla. Stat. § 337.401(3), (4) and (5)....
...cedures, etc. This regulation is excluded from preemption by both federal and state law, with certain exceptions and limitations. For example, Subsection 4.2.2, which refers to "all required permit and associated fees" is limited by Florida Statutes section 337.401 to the one percent fee and the costs allowable by § 337.401(4), as explained above. Subsection 4.4 is limited to the Town's inspection of facilities within the rights-of-way. The Town does not have the authority to request information regarding systems, plans, or purposes of the telecommunications facilities. See Fla. Stat. § 337.401(6)....
...gulation of the management of the rights-of-way. In addition, subsection 4.4 also impermissibly grants the Town the right to notice of and presence at any testing. This notice imposes an operational requirement forbidden by state law. See Fla. Stat. § 337.401(6)....
...rt of the Ordinance deemed unenforceable against Bellsouth by this opinion. Section 20-7. Transitional Provisions: This Section is also valid in its entirety. Of course, to the extent that these transitional provisions conflict with Florida Statutes Section 337.401(7) regarding providers lawfully occupying the rights-of-way in the Town, the state law will prevail....
...ns which are preempted by federal and state law. Subsections 1.1.3, 1.1.4, and 1.1.5 impose requirements that the applicant submit proof of its financial, technical, and legal qualifications. This type of requirement is preempted by Florida Statutes Section 337.401(6) and (7), which reserve to the Public Service Commission the regulation of "qualifications." In addition, the AT&T Communications of Southwest v....
...Subsection 1.5 concerns compensation, and thus all of subsection 1.5 must fail as state law limits such compensation, with the exception of subsection 1.5.5 mandating that the compensation paid must be publicly disclosed by the Town. As discussed *1356 above, the only fees that may be required are the one percent fee in Section 337.401(3) and the construction fees allowed by Section 337.401(4)....
...§ 253(b). While states could delegate such authority to local governments, Florida has not done so. City of Dallas, 8 F.Supp.2d at 591. Rather, Florida law gives the exclusive authority over "services" to the Public Service Commission. Fla. Stat. Section 337.401(6)....
...ay," "the reasonable cost of the regulatory activity of the municipality," and "the proportionate share of cost of land for such ... public way attributable to utilization of the right-of-way by a telecommunications service provider." See Fla. Stat. § 337.401(4)....
...pay phones located in the public rights-of-way. The district court concluded that municipalities and counties, retained under Florida state law, the power to manage the "placement or maintenance of facilities" in the public rights-of-way. Fla. Stat. § 337.401 (3)(b)....
...cilities and their location in the public rights-of-way subjected them to regulation by Miami Beach. In determining whether the regulations in the Right-of-Way Ordinance were permissible, the district court applied a three-prong test as set forth in section 337.401(3)(b), Florida Statutes....
...ons companies, and such preemption shall supersede any local or special act or municipal charter where any conflict of authority may exist. However, the provisions of this chapter shall not affect the authority and powers granted in s. 166.231(9) or s. 337.401....
...15 The only limitation on this exclusive jurisdiction to regulate telecommunications companies relevant to this case is that municipalities and counties retain the right to manage their roads and public rights-of-way pursuant to their police power. Section 337.401(3)(b), Florida Statutes, states that "[e]ach municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power." Thus, municipalities' and counties' right t...
...As discussed above, under section 364.01(2), Florida Statutes, local governments retain jurisdiction to manage their roads and the public rights-of-way. This jurisdiction includes the right to manage the "placement or maintenance of facilities." Fla. Stat. § 337.401 (3)(b)....
...17 In this case, Miami Beach's Right-of-Way Ordinance only concerns the regulation of pay phones located within the city's public rights-of-way. Pay phones are clearly facilities, therefore, pay phones located in Miami Beach's public rights-of-ways are subject to the city's regulation under section 337.401(b), Florida Statutes. There is no preemption by state law. 18 Although the scope of a municipality's and county's jurisdiction to manage its roads and the public rights-of-ways is extremely broad under its policing power, section 337.401, Florida Statutes limits somewhat the authority to regulate telecommunications companies' facilities. The Florida Legislature set forth three requirements that must be satisfied for a municipality or county to regulate a telecommunications company's facilities in its roads or the public rights-of-way. In relevant part, section 337.401(3)(b), Florida Statutes, states that: 19 Each municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power....
...ust be (1) related to the placement or maintenance of facilities in municipal and county roads or the public rights-of-way; (2) reasonable and non-discriminatory; and (3) necessary to the management of such roads and public rights-of-way. Fla. Stat. § 337.401 (b)....
Cited 1 times | Published | Court of Appeals for the Eleventh Circuit
...Preemption by Florida State Law
Under Florida Statutes § 364.01(2), the Florida Public Service Commission
(“FPSC”) has jurisdiction over the regulation of telecommunications companies
within the state. Local governments are preempted from regulating
telecommunications companies except to the extent provided in § 337.401, which
is the provision of state law that historically has governed municipalities’ power to
regulate and tax telecommunications companies’ use of the public rights-of-way.
Our analysis of § 337.401 in this case is complicated somewhat by the fact that the
statute has been amended twice since these lawsuits were filed, and future
6
amendments are scheduled. When these lawsuits were initiated in August 1997
and April 1998, the text of § 337.401 had stood unaltered since 1994. In May
1998, however, § 337.401 was substantially amended. See 1998 Fla. Laws ch. 98-
147. The district court duly took the 1998 amendments to § 337.401 into account
when deciding the state-law preemption question in its summary-judgment orders,
which issued in January and September of 1999. After the district court had
entered its final judgment in both cases, the Florida legislature amended § 337.401
again with the passage of the Communications Services Tax Simplification Law
(“Simplification Law”), 2000 Fla. Laws ch. 00-260. In order to understand the
changes envisioned in the Simplification Law, we must begin with an assessment
of the law that predated it.
Under the version of § 337.401 as amended in 1998, it was clear that
municipalities were prohibited from exercising their authority to manage the public
rights-of-way in such a way as to exert regulatory control over matters that fell
under the exclusive jurisdiction of the FPSC or the Federal Communications
Commission (“FCC”). Fla. Stat. § 337.401(6) (Supp....
...percent of the gross receipts on recurring local service revenues for services
provided within the corporate limits of the municipality” as consideration for the
7
right to occupy the public rights-of-way. Id. at § 337.401(3)....
...requiring them to pay fees based on the number of miles of cable laid in the public
rights-of-way, as well as certain other fees as compensation for the direct, physical
use of the rights-of-way and the administrative costs of regulating the rights-of-
way. Id. at § 337.401(4).
The impetus for the Simplification Law appears to have been, in large part,
the need to bring Florida law into compliance with the Telecommunications Act of
1996. To this end, the Simplification Law mapped out a complicated schedule of
amendments to the Florida Statutes, including “transitional” amendments to §
337.401, which took effect on 1 January 2001. 2000 Fla. Laws ch. 00-260, § 50;
Fla. Stat. § 337.401 (Supp. 2001). The transitional version of § 337.401 severely
curtails municipal authority over telecommunications companies by prohibiting
municipalities from requiring telecommunications companies to enter into a
“license, franchise, or other agreement” as a condition of using the public rights-of-
way, id. at § 337.401(3)(a), and by requiring that any municipal regulations
pertaining to telecommunications companies’ use of the public rights-of-way
“must be related to the placement or maintenance of facilities in such roads or
rights-of-way, must be reasonable and nondiscriminatory, and may include only
8
those matters necessary to manage the roads or rights-of-way,” id. at §
337.401(3)(b).
The other significant feature of the transitional version of § 337.401, and the
feature that indicates why a transitional provision is necessary, is the requirement
that each municipality make an election that will affect the rate it will be able to
charge if the local communications services tax (“LCST”), authorized under § 11
of the Simplification Law, takes effect on 1 October 2001. Section
337.401(3)(c)(1) requires municipalities to choose whether they will collect certain
limited permit fees from communications providers for use of the public rights-of-
way; if a municipality chooses to charge permit fees, it must reduce the rate of its
LCST by 0.12%, but if it chooses not to charge such fees, it may increase the rate
by 0.12%. Because the LCST does not take effect until 1 October 2001, if it takes
effect at all, the transitional § 337.401 carries over, in subsections (3)(e) and (3)(f),
the language of the 1998 version’s subsections (3) and (4) pertaining to taxes and
fees that may be levied on telecommunications companies in the meantime.
Section 337.401 is scheduled to be amended again on 1 October 2001, removing
the language in subsections (3)(e) and (3)(f) entirely to reflect the implementation
of the new LCST scheme. See 2000 Fla. Laws ch. 00-260, § 51.
9
The LCST is intended to replace the patchwork system by which each
municipality had set its own formula (within the bounds of prior versions of §
337.401) for how it would tax telecommunications companies’ use of the public
rights-of-way....
...for
the contingency that the REC would not be able to establish acceptable rates for the
LCSTs: unless the Florida legislature acts before 30 June 2001, on that date section
58 of the Simplification Law will repeal the transitional amendments to § 337.401,
as well as the 1 October 2001 amendments to § 337.401 and the other sections
implementing the LCST, and § 59 will reinstate the 1998 version of § 337.401
(with only minor changes) on the same day....
...1992) (quoting Diffenderfer v. Cent. Baptist Church, 404 U.S.
412, 414, 92 S.Ct. 574, 575 (1972)). Accordingly, we can only conduct our state-
law preemption analysis under the version of the statute that is currently in
effect–the transitional version of § 337.401.3
1. Preemption of Specific Sections of Coral Springs Ordinance 97-114
by the Transitional Version of § 337.401
As a preliminary matter, it is necessary to define some of the key terms as
they are used in the state law and in the ordinance. Section 337.401 addresses
municipal regulation of “telecommunications companies,” which are defined in §
364.02(12) as “every corporation, partnership, and person ....
...hallenged statute to render
the appeal of that judgment moot, see Fillyaw, 958 F.2d at 1519-20, in this case, a live
controversy remains as to whether the Cities’ ordinances are preempted under the Simplification
Law’s transitional amendments to § 337.401.
11
“[a]n entity which provides a telecommunications facility exclusively to a
certificated telecommunications company” or “[a] private computer data network
company not offering ser...
...acilities and private
communications systems.
12
It is clear from these definitions that provisions of ordinance 97-114
governing “telecommunications facilities” are subject to preemption by §
337.401’s limitations on municipal power to regulate “telecommunications
companies.” Provisions of the ordinance regulating “private communications
systems,” however, do not fall within the penumbra of § 337.401....
...telecommunications facilities to obtain franchises prior to providing
telecommunications services within Coral Springs. The franchise requirements in
subsections (1) and (2) and the license requirements for telecommunications
facilities in subsection (3) are flatly preempted by § 337.401(3)(a), which prohibits
municipalities from requiring telecommunications companies to enter licenses,
franchises, or other agreements as a condition of using the public right-of-way to
provide telecommunications services.
13
Section 20-3....
...The
franchise fee, which is established in section 20-21(5)(A) as 10% of the gross
revenues generated by the operator of the telecommunications facility’s use of the
public rights-of-way, is obviously preempted by the prohibition of franchises in §
337.401(3)(a)....
...recover ongoing right-of way costs to the City caused by burdens users place upon
the right-of-way,” and is to be established on a per-linear-foot basis for
telecommunications facilities located in the rights-of-way. This type of a fee is
specifically authorized by state law, but § 337.401(3)(f) establishes several factors
that limit the maximum permissible amount of the fee. Thus, the occupancy fee is
not facially void under state law, but there remains a question as to whether Coral
Springs has in fact limited the rate of the occupancy tax it exacts to comply with
the state-law limits outlined in § 337.401(3)(f). Because neither party has
presented evidence of whether the actual amount of the occupancy fee Coral
Springs has charged exceeds that permitted in § 337.401(3)(f), neither party is
entitled to summary judgment on the issue of whether the occupancy tax, as
applied, is preempted by state law.
14
Section 20-4....
...straightforward provisions governing the installation, construction, relocation, and
maintenance of telecommunications facilities. We find, with the exception of two
subsections, that section 20-4 is not preempted by state law because its provisions
fall within the ambit of § 337.401(3)(b), which reserves to municipalities the right
to adopt rules or regulations governing the roads and rights-of-way, so long as they
are “related to the placement or maintenance of facilities in such roads or rights-of-
way, [are] reasonable and nondiscriminatory, and ....
...and repair and the purposes for which the plant is being constructed, operated or
repaired.” As stated previously, under § 364.01(2), local governments are
preempted from regulating telecommunications companies except to the extent
provided in § 337.401....
...While Coral Springs’s reservation of the power to request
15
information from operators of telecommunications facilities regarding their future
plans for use of the rights-of-way constitutes a reasonable regulation of the rights-
of-way under § 337.401(3)(b), the second sentence of subsection (4), by its terms,
“includes,” but is not limited to, requests for information concerning the rights-of-
way....
...This subsection also prohibits telecommunications
facility operators from discriminating or retaliating against individuals or the City
for the exercise of any legally protected right. The requirements in subsection (7)
clearly exceed the municipality’s authority under § 337.401(3)(b) to issue
4
We decline to apply a limiting construction to save the valid portions of the information
request provision, because “as a federal court, we must be particularly reluctant to rewrite the
terms of a state statute.” Dimmitt v....
...nce bonds,
and a security fund that are required of telecommunications companies seeking to
use the public rights-of-way. These are reasonable regulations directly related to
the management of the rights-of-way, and are therefore authorized under §
337.401(3)(b).
Section 20-6....
...t do not actually regulate
telecommunications providers; these sections are not preempted by state law.
5
BellSouth has not claimed that Coral Springs is, in fact, enforcing the terms of this
subsection in a manner inconsistent with § 337.401.
17
Subsections (2), (3), (5), (6), (12), and (14) of section 20-6 pertain to
licenses and franchises, and are therefore preempted by § 337.401(3)(a), which
prohibits these arrangements to the extent they apply to telecommunications
companies.
Subsection (4) “Penalties” provides for a fine to be levied against any person
who violates the ordinance. While the fine may not be used to enforce any section
of the ordinance that has been found to be preempted, the power to fine is a police
power, and therefore is reserved to the municipality under § 337.401(3)(b).
Subsection (8) “Access to books and records” grants Coral Springs access to
all books and records in a telecommunications company’s possession pertaining to
“the construction, operation, or repair of the communicati...
...derived from the operation of the communications facility.” Coral Springs’s power
to access documents pertaining to the construction and repair of communications
facilities is necessary to its direct regulation of the rights-of-way, and is therefore
authorized under § 337.401(3)(b); however, under state law it does not have a right
to access books and records relating to “operations,” as that term extends far
beyond those matters directly related to the rights-of-way. Further, because the
18
franchise and license fee as applied to telecommunications companies is preempted
under § 337.401(3)(a), Coral Springs’s ability to request financial information for
the purpose of determining compliance with such a fee is also preempted.
Subsection (9) “Retention of Records,” and subsection (10) “Reports,”
require the operators of telecommunications facilities to retain records and prepare
reports as requested to aid Coral Springs in determining if the facilities are in
compliance with the ordinance. These requirements are valid under §
337.401(3)(b) as they are necessary to Coral Springs’s regulation of the rights-of-
way.
Subsection (11) “Maps” requires operators of telecommunications facilities
to “maintain accurate maps and improvement plans which show the location, size,
and a general description of all facilities installed in the rights-of-way.” This
requirement is valid under § 337.401(3)(b) as a reasonable means by which the
City can ensure that future construction in the rights-of-way does not interfere with
or damage existing communications lines and facilities.
Section 20-7....
...s holding franchises or licenses at the
19
time of the ordinance’s enactment may continue to operate under the terms of the
franchise or license until its expiration. These subsections are preempted by §
337.401(3)(a), which prohibits municipalities from requiring telecommunications
companies to enter franchises or licenses....
...plicant must meet in order to
obtain a franchise to operate a telecommunications facility in the rights-of-way in
Coral Springs, and also sets out the formula for the calculation of the franchise fee.
While Coral Springs does have the right under § 337.401(3)(a) to request some of
the information and credentials from a telecommunications company that it
requests under section 20-21, it clearly may not do so in the context of a franchise
application, and it may not charge a franchise fee. This section is preempted in its
entirety.
2. Preemption of Specific Sections of Palm Beach Ordinance 16-97 by
the Transitional Version of § 337.401
The scope of ordinance 16-97 is significantly broader than that of ordinance
97-114, as it regulates telecommunications facilities and services, private
communications systems, cable systems, and open video systems. The only
20
provisions of the ordinance subject to preemption by § 337.401, however, are those
pertaining to the regulation of telecommunications facilities and services, as those
terms are defined in the ordinance,6 and so our analysis of the ordinance is limited
to its effects on those areas.
Title I, Section 2. Franchise Required: This section requires the operators
of telecommunications facilities to obtain franchises prior to providing
telecommunications services within Palm Beach. It is preempted by §
337.401(3)(a), which explicitly prohibits municipalities from requiring
telecommunications companies to enter licenses, franchises, or other agreements as
a condition of using the public right-of-way to provide telecommunications
services.
Title I, Section 3....
...Communications Commission.”
21
an annual occupancy fee; and (v) a franchise fee, established in title II of the
ordinance.
All of the fees associated with a franchise would be preempted by §
337.401(3)(a), which prohibits municipalities from imposing franchise agreements
on telecommunications companies....
...he terms of the annual occupancy fee,
other than to state in subsection 3.3 that it “may be charged on a gross revenue or
per-linear-foot basis.” Subject to limitations, an occupancy fee based on gross
revenues is permitted under state law in § 337.401(3)(e), and a fee based on
distance of cable laid is permitted in § 337.401(3)(f). The occupancy fee,
therefore, is not facially preempted, but may be preempted if the actual fees
charged by Palm Beach exceed the limitations in § 337.401....
...tions facilities. With
three exceptions, section 4 is not preempted by state law because its provisions are
reasonable rules or regulations “related to the placement or maintenance of
facilities in such roads or rights-of-way” permitted under § 337.401(3)(b).
The first preempted provision is subsection 4.2.6, which reads:
Every operator of a communications facility shall make available to other
franchisees or licensees any of its conduits that is excess, so long as it is
excess, at a reasonable, non-discriminatory rental fee....
...This requirement places a potentially substantial burden on telecommunications
companies that, while perhaps furthering Palm Beach’s policies for the
development of its technological infrastructure, goes far beyond the authority
allotted it in § 337.401(3)(b) to regulate “only those matters necessary to manage
the roads or rights-of-way.”
23
The second preempted subsection, 4.4, states:
Every communications facility shall be sub...
...peration and
repair and the purposes for which the plant is being constructed, operated or
repaired.
While Palm Beach does have certain rights to inspect the telecommunications
facilities and request information relating to them, under § 337.401(3)(b) it may
only do so with respect to matters concerning the physical use and management of
the rights-of-way....
...rates on customers based on
24
income. The requirements in subsection 4.7 go far beyond matters necessary to
regulate the physical rights-of-way, and therefore exceed the municipality’s
authority under § 337.401(3)(b).
Title I, Section 5....
...ce
bonds, and a security fund that are required of telecommunications companies
seeking to use the public rights-of-way. These are reasonable regulations directly
related to the management of the rights-of-way, and are therefore authorized under
§ 337.401(3)(b).
Title I, Section 6....
...orcement of
the ordinance but do not actually regulate telecommunications providers; these
sections are not preempted by state law.
Subsections 6.2, 6.3, 6.5, 6.6, and 6.12 pertain to licenses and franchises,
and are therefore preempted by § 337.401(3)(a), which prohibits these
arrangements to the extent they apply to telecommunications companies.
25
Subsection 6.4 “Penalties” provides for a fine to be levied against any person
who violates the ordinance. While the fine may not be used to enforce any section
of the ordinance that has been found to be preempted, the power to fine is a police
power, and therefore is reserved to the municipality under § 337.401(3)(b).
Subsection 6.8 “Access to books and records” grants Palm Beach access to
all books and records in a telecommunications company’s possession “related to
the construction, operation, or repair of the communications fa...
...ation of the
communications facility.” Palm Beach’s power to access documents pertaining to
the construction and repair of communications facilities is necessary to its direct
regulation of the rights-of-way, and is therefore authorized under § 337.401(3)(b);
however, under state law it does not have a right to access books and records
relating to operations or revenues, as those matters are not directly related to the
rights-of-way.
Subsection 6.9 “Retention of Records,” a...
...require the operators of telecommunications facilities to retain records and prepare
reports as requested to aid Palm Beach in determining if the facilities are in
compliance with the ordinance. These requirements are valid under §
26
337.401(3)(b) as they are necessary to Palm Beach’s regulation of the rights-of-way.
Subsection 6.11 “Maps” requires operators of telecommunications facilities
to “maintain accurate maps and improvement plans which show the location, size,
and a general description of all facilities installed in the public rights-of-way.”
This requirement is valid under § 337.401(3)(b) as a reasonable means by which
the City can ensure that future construction in the rights-of-way does not interfere
with or damage existing communications lines and facilities.
Title I, Section 7....
...franchise or license, and subsection 7.2 states that persons holding franchises or
licenses at the time of the ordinance’s enactment may continue to operate under the
terms of the franchise or license until its expiration. These subsections are
preempted by § 337.401(3)(a), which prohibits municipalities from requiring
telecommunications companies to enter franchises or licenses....
...27
to obtain a franchise to operate a telecommunications facility in the rights-of-way
in Palm Beach, and also sets out the formula for the calculation of the franchise
fee. While Palm Beach does have the right under § 337.401(3)(a) to request some
of the information and credentials from a communications company that it requests
under this section, it clearly may not do so in the context of a franchise application,
and it may not charge a franchise fee....
...a state law and by § 253 of the
Telecommunications Act of 1996. BellSouth cross-appeals the district court’s
decisions not to find the ordinances preempted in their entirety. We hold that
specific subsections of the ordinances are preempted by § 337.401 of the Florida
Statutes, but that others are valid exercises of local authority under the Florida
scheme....
...Hargrove of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, and Dorian S. Denburg of Bellsouth Telcommunications, Inc., Atlanta, Georgia, for appellee. MAY, J. When is a charter county like a municipality? The answer is: when it assesses a fee, pursuant to section 337.401(3), Florida Statutes (1999)....
...se of certain Public Right Of Way, the Local Service Provider agrees to pay 1% of the gross receipts on recurring local service revenues for services provided within the unincorporated area of Palm Beach County. The ordinance was passed to implement section 337.401(3), Florida Statutes (1999)....
...use of rights-of-way in and within the County's boundaries. While PALM BEACH COUNTY is a "charter county" having "municipal authority" it is not entitled to charge the occupancy or use fee which only a municipality can charge under Florida Statutes § 337.401(3)....
...From this judgment, Palm Beach County appeals. The standard for review of this judgment is de novo, as the appeal is restricted to issues of law. Lowe v. Broward County, 766 So.2d 1199 (Fla. 4th DCA 2000). The question now to be answered is whether the term "municipality," as used in section 337.401(3), Florida Statutes (1999), encompasses charter counties....
...counties from its purview. BellSouth also raised the issue of preemption. However, it has cited no express preemption provision and has not demonstrated implied preemption. Furthermore, the Eleventh Circuit Court of Appeals has expressly found that Section 337.401, Florida Statutes, provides for valid exercises of local authority under Florida law....
...Town of Palm Beach, 252 F.3d 1169 (11th Cir.2001). We therefore hold that Palm Beach County's ordinance is neither expressly nor impliedly preempted by state or federal law. The ordinance is a valid exercise of Palm Beach County's right of self-government, which is authorized by Section 337.401(3)(c)1, Florida Statutes (1999)....
Published | Court of Appeals for the Eleventh Circuit | 2003 WL 302103
facilities” in the public rights-of-way. Fla. Stat. § 337.401(3)(b). Additionally, the district court found
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
