§ 32-106. Findings, intent and scope.

(a)

The town hereby makes and declares the following findings and declares its legislative intent as follows:

(1)

The public rights-of-way within the Town of Windermere are a unique and physically limited resource and important amenity that are critical to the travel and transport of persons and property in the town.

(2)

The demand for telecommunications services has grown exponentially in recent years, requiring the continual upgrading of telecommunications equipment and services to satisfy such demand.

(3)

The placement of telecommunications equipment and facilities in the public rights-of-way to satisfy the demand for telecommunications services raises important issues with respect to the town's responsibility to manage its public rights-of-way.

(4)

The public rights-of-way must be managed and controlled in a manner that enhances the health, safety and general welfare of the town and its citizens.

(5)

The use and occupancy of the public rights-of-way by providers of communications services must be subject to regulation which can ensure minimal inconvenience to the public, coordinate users, maximize available space, reduce maintenance and costs to the public, and facilitate entry of an optimal number of providers of cable, telecommunications, and other services in the public interest.

(6)

F.S. § 166.041, provides for procedures for adoption of an ordinance which is a regulation of general and permanent nature and enforceable as local law.

(7)

F.S. § 337.401, addresses the authority of municipalities to regulate the placement and maintenance of communication facilities, and other utilities, in the public rights-of-way.

(8)

In 2017, Florida passed Chapter 2017-136, Laws of Florida, which inter alia, amends F.S. § 337.401, to create the new subsection (7) known as the Advanced Wireless Infrastructure Deployment Act ("Wireless Deployment Act"), effective July 1, 2017, to address municipalities' regulation of access to the public rights-of-way for wireless communications facilities and wireless support structures.

(9)

The Wireless Deployment Act provides that municipalities may require a registration process in accordance with F.S. § 337.401(3), may adopt by ordinance provisions for insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipality liability or municipal warranties and further provides that, for any applications filed before the effective date of ordinances implementing this subsection, an authority may apply current ordinances relating to the placement of communications facilities in the right-of-way related to registration, permitting, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipality liability or municipal warranties.

(10)

The communication industry is in a constant state of emerging technology that includes the infrastructure required to support the increased demand and capacity to receive and to transmit increased data and voice communications.

(11)

A new network of wireless communications infrastructure has emerged comprised of a series of small individual antenna ("small cells"), or nodes ("distributed antenna systems" or "DAS"), and wireless backhaul networks that are linked to a larger hub site.

(12)

The town has received requests to place wireless communications facilities and wireless support structures within the public rights-of-way.

(13)

The current town Code does not contain requirements for registration, insurance, permitting, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipality liability or municipal warranties that address sufficiently the placement or maintenance within the public rights-of-way for wireline and wireless communications facilities or wireless support structures.

(14)

The town finds that, to promote the public health, safety and general welfare, it is necessary to (i) provide for the placement or maintenance of communications facilities in the public rights-of-way within the town limits, (ii) adopt and administer reasonable rules, regulations and general conditions not inconsistent with applicable state and federal law, (iii) manage the placement and maintenance of communications facilities in the public rights-of-way by all communications services providers, (iv) minimize disruption to the public rights-of-way, and (v) require the restoration of the public rights-of-way to original condition.

(15)

It is the intent of the town to require that the placement or maintenance of any wireline or wireless communications facility or wireless support structure in the public rights-of-way must have an effective registration which satisfies the requirements set forth herein for such registration, to the extent not inconsistent with applicable federal and state laws and regulations.

(16)

It is also the town's intent to exercise the town's retained authority to regulate and manage the town's roads and rights-of-way in exercising its police power over communications services providers' placement and maintenance of facilities in the public rights-of-way in a nondiscriminatory and competitively neutral manner.

(b)

This article shall apply to any public or private entity who seeks to construct, place, install, maintain or operate a communications system or facilities, as such terms are defined herein, in the public rights-of-way, unless otherwise exempt by operation of applicable state or federal law. This article shall equally apply to a town owned or controlled communications system except to the extent such facilities are utilized on an internal, non-commercial basis by the town or any of its agencies, departments or bureaus.

(Ord. No. 2018-09, § 1, 12-11-2018)