STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WITHLACOOCHEE RIVER ELECTRIC ) COOPERATIVE, INC., )

)

Petitioner, )

and )

) FLORIDA ELECTRIC COOPERATIVE ) ASSOCIATION, INC., FLORIDA ) MUNICIPAL ELECTRIC ASSOCIATION, ) INC., FLORIDA POWER CORPORATION, )

)

Intervenors, )

)

vs. ) CASE NO. 95-4221RU

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent, )

and )

)

TIME WARNER ENTERTAINMENT )

CO., L.P., )

)

Intervenor. )

)

FINAL ORDER

Final hearing in the above-styled case was held in Tallahassee, Florida, on September 29, 1995 and October 13, 1995, before Richard Hixson, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James Harold Thompson, Esquire

R. Stan Peeler, Esquire

Macfarlane Ausley Ferguson & McMullen

227 South Calhoun Street Tallahassee, Florida 32302

Marvin Barkin, Esquire Edward C. LaRose, Esquire

Trenam, Kemker, Scharf, Barken, Frye, O'Neill & Mullis, P.A.

2700 Barnett Plaza

101 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Cindy S. Price, Esquire

Murray Wadsworth, Jr., Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

For Intervenor: Martha Harrell Chumbler, Esquire Time Warner Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A.

Suite 500, 215 South Monroe Street

Tallahassee, Florida 32301

Gardner F. Gillespie, Esquire Hogan & Hartson

555 Thirteeneth Street, North West Washington, D.C. 20004

For Intervenor: John H. Haswell, Esquire Florida Electric Chandler, Lang & Haswell, P.A. Cooperative 211 East First Street Association, Inc. Gainesville, Florida 32601

Michelle L. Hershel, Esquire 2916 Apalachee Parkway

Tallahassee, Florida 32302

For Intervenor: Frederick M. Bryant, Esquire Florida Moore, Williams, Bryant, Gautier Municipal & Donohue

Electric Post Office Box 1169 Association Tallahassee, Florida 32302

For Intervenor: Jeffery A. Froeschle, Esquire Florida Power 3201 Thirty-Fourth Street South Corporation St. Petersburg, Florida 33711

STATEMENT OF THE ISSUES

The issues for determination in this case are whether certain provisions of the 1993 Florida Utility Accommodation Manual which have been adopted by Respondent, the FLORIDA DEPARTMENT OF TRANSPORTATION, as rules by reference in Rule 14-46.001(3), Florida Administrative Code, constitute invalid exercises of delegated legislative authority. The specific provisions of the 1993 Florida Utility Accommodation Manual which are at issue include the definitions of "utility" and "utility facilities" (page 4), the "no monetary gain" provision (page 7), and the "joint use" provision (page 12).

In addition, Petitioners raised an issue as to whether Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION violated Section 120.535, Florida Statutes, by failing to adopt by rule certain agency requests for information from Petitioner regarding costs associated with the installation and maintenance of utility poles.

PRELIMINARY STATEMENT

On August 24, 1995, Petitioner, WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE,

INC., filed a Petition with the Division of Administrative Hearings pursuant to

Sections 120.56 and 120.535, Florida Statutes, to Determine the Invalidity of Rules promulgated by Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION. The case was assigned to the undersigned Hearing Officer on August 30, 1995, and set for hearing to commence September 29, 1995.

On September 18, 1995, Respondent filed a Motion for Partial Summary Final Order as to Petitioner's claim that certain requests for information from the Petitioner regarding the costs associated with the installation and maintenance of utility poles violated the provisions of Section 120.535, Florida Statutes. Based on the memoranda submitted by the parties, argument of counsel, and the pleadings and discovery filed in this matter, Respondent's Motion for Partial Summary Final Order was granted at the beginning of the hearing on September 29, 1995, for reasons more fully set forth below. The hearing proceeded on the three remaining claims challenging the validity of the existing rule provisions of the 1993 Florida Utility Accommodations Manual brought pursuant to Section 120.56, Florida Statutes.

Several parties sought and were granted leave to intervene in this proceeding. TIME WARNER ENTERTAINMENT CO., L.P., filed its petition to intervene in support of the challenged rules on August 28, 1995. FLORIDA ELECTRIC COOPERATIVE ASSOCIATION, INC., filed a petition to intervene in opposition to the challenged rules on September 13, 1995. Subsequent petitions to intervene filed by the FLORIDA MUNICIPAL ELECTRIC ASSOCIATION, INC., and FLORIDA POWER CORPORATION, were granted orally at the beginning of the hearing on September 29, 1995.

On September 26, 1995, Petitioner, WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE, Respondent, the FLORIDA DEPARTMENT OF TRANSPORTATION, and Intervenors, TIME WARNER ENTERTAINMENT INC., L.P., and FLORIDA ELECTRIC

COOPERATIVE ASSOCIATION filed a joint prehearing stipulation. The additional Intervenors, FLORIDA POWER CORPORATION and the FLORIDA MUNICIPAL ELECTRIC

ASSOCIATION, did not join in the prehearing stipulation; however both Intervenors agreed that their participation in this proceeding was limited by the stipulations and issues as delineated in the prehearing stipulation.

Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION, and Intervenor, TIME WARNER ENTERTAINMENT INC., L.P., objected to the intervention of FLORIDA POWER CORPORATION, and continue to assert that FLORIDA POWER CORPORATION lacks standing to intervene in these proceedings. For the reasons set forth below, the objections are denied.

Final hearing began on September 29, 1995, and was completed on October 13, 1995. At hearing Petitioner, WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE, INC.,

presented the testimony of William F. Hetherington, Dennis M. LaBelle, and James Weeks. Petitioner presented no exhibits. Judicial notice was taken of the 1993 Florida Utility Accommodation Manual.

Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION, presented the testimony of Richard Larry Noles, Jerry Sasser, and Paul Kaczorowski, and presented three exhibits which were admitted into evidence without objection. Intervenor, TIME WARNER ENTERTAINMENT, INC., L.P., presented no witnesses, and offered two exhibits which were admitted without objection. Judicial notice was taken of Florida Attorney General's Opinion 067-26, and 47 U.S.C.A. s. 224. The remaining Intervenors presented no witnesses and no exhibits.

Pursuant to agreement of the parties, recommended final orders were filed on November 17, 1995. Specific rulings on the proposed findings submitted by the parties are set forth in the Appendix attached hereto.

FINDINGS OF FACT

1. Petitioner, WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE (WITHLACOOCHEE), is a cooperatively-owned utility operating in the State of Florida.

   
   

2. Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), is the agency of the State of Florida vested with jurisdiction over the regulation of the use of state rights-of-way along, across, or on any public roads or publicly owned rail corridors.

   
   

3. WITHLACOOCHEE owns utility poles which are located in state rights-of-

   way

   
   

4. FDOT has promulgated rules for the regulation of the usage of the state

   rights-of-way by utilities, including cooperatively-owned utilities such as WITHLACOOCHEE.

   
   

5. WITHLACOOCHEE holds valid permits issued by FDOT which authorize and regulate the placement of its utility poles on state rights-of way.

   
   

6. FDOT does not receive from WITHLACOOCHEE any fees or other compensation for the placement of its utility poles on state rights-of-way.

   
   

7. Intervenor, TIME WARNER ENTERTAINMENT COMPANY, L.P. (TIME WARNER), is in the business of providing cable television service throughout the State of Florida, and has placed and maintains cable television lines within the state rights-of way. Cable television lines are structures similar to telephone, telegraph and other lines transmitting communications.

   
   

8. Intervenor, TIME WARNER, (including its predecessors), and WITHLACOOCHEE have been joint users of the state rights-of-way in Pasco, Hernando, and Citrus Counties since before 1982.

   
   

9. Intervenor, TIME WARNER, including its predecessors, and WITHLACOOCHEE have entered into pole sharing agreements regarding the placement and maintenance of TIME WARNER's cable television lines on WITHLACOOCHEE's utility poles.

   
   

10. On or about November of 1994, the pole sharing agreements between TIME WARNER and WITHLACOOCHEE terminated.

    
    

11. Prior to the termination of the pole sharing agreements, on April 13, 1994, TIME WARNER filed a petition with FDOT requesting that FDOT address and resolve the dispute with WITHLACOOCHEE.

    
    

12. The TIME WARNER petition was the first such petition ever filed with FDOT.

    
    

13. By order dated June 14, 1995, FDOT denied WITHLACOOCHEE's Motion to Dismiss the TIME WARNER petition.

    
    

14. In an effort to collect information regarding the petition, FDOT by letter dated July 6, 1994, and subsequently by Show Cause Order entered June 14,

    1995, requested pole cost information from WITHLACOOCHEE. On June 30, 1995, WITHLACOOCHEE responded to the Show Cause Order, contesting the authority of FDOT to request such information.

    
    

15. FDOT has not promulgated rules with respect to the request of costs associated with installation and maintenance of utility poles or other such information from a utility.

    
    

    STANDING OF INTERVENOR FLORIDA POWER CORPORATION

    
    

16. On September 22, 1995, FLORIDA POWER CORPORATION (FLORIDA POWER), filed a Petition for Leave to Intervene in these proceedings alleging that it is a utility in the State of Florida, that it owns poles in the state rights-of- way, that it has entered into pole sharing agreements with cable television companies which set rates that the cable television companies will pay to FLORIDA POWER to attach their cables to FLORIDA POWER's poles. These allegations were not disputed.

    
    

17. Respondent FDOT and Intervenor TIME WARNER contend that FLORIDA POWER lacks standing because under 47 U.S.C. s. 224, the Federal Communications Commission, and not FDOT, has authority to regulate the rates, terms, and conditions for attachments by cable television systems, and therefore the substantial interests of FLORIDA POWER are not affected in this proceeding.

    
    

18. FLORIDA POWER's substantial interests are affected by a determination of FDOT's definition of "utility" and "utility facilities", and by a determination of the extent to which FDOT has jurisdiction over the regulation of the use of the state rights-of-way by utilities. FLORIDA POWER has a substantial interest in the determination of the application of federal and state statutes in this regard, and should not be foreclosed from presenting its position in these proceedings.

    
    

    CHALLENGE TO ADOPTED RULES

    
    

19. WITHLACOOCHEE challenges three provisions contained in the 1993 Florida Utility Accommodation Manual (Manual). FDOT has adopted the Manual as a rule by reference in Rule 14-46.001(3), Florida Administrative Code. Specifically, WITHLACOOCHEE challenges the Manual's definition of "utility" and "utility facilities", (page 4), the "no monetary gain" provision, (page 7), and the "joint use" provision, (page 12).

    
    

20. The Manual provides guidelines for the issuance of utility permits on public roads maintained by FDOT. A version of the Manual has been in existence since at least 1964. The 1993 edition of the Manual contains, on page 5, a statement of intent which provides in pertinent part:

    
    

    This Manual is established to regulate the location, manner, installation and adjustment of utility facilities along, across, under or on any right-of-way under the jurisdiction of the FDOT. This Manual also is used for issuing permits for such work which is in the interest of safety, protection, utilization and future development of the highways with due consideration given to public serves afforded by adequate and economical utility installations as authorized under Section

    337.403, Florida Statutes and Florida Administrative Code Rule 14-46.001. Adherence shall be required under the circumstances set forth in this Manual. Where actual field conditions vary from those outlined in this Manual, disputes may arise as to what accommodation criteria is appropriate under the actual conditions. Such disputes which cannot be resolved at the local or District level by mutual agreement shall be referred

    to the State Utility Administrator or designee for final resolution. While this Manual governs matters concerning future

    location, manner and methods for the installa- tion or adjustments and maintenance of utilities on FDOT right-of-way, it does not alter current regulations pertaining to authority for their installation nor does it determine financial responsibilities for placement or adjustment thereof.

    
    

21. The Manual is prepared with the consultation and cooperation of the Florida Utilities Coordinating Committee (Committee).

    
    

22. The Committee is a voluntary private organization comprised of representatives from various utilities, including cooperatively owned utilities, that coordinates and communicates with FDOT on issues impacting both the utility industries and FDOT. The Committee meets with representatives of FDOT on a regular basis to develop policy recommendations on such issues.

    
    

23. The Committee worked with representatives of FDOT in developing the 1993 edition of the Manual. Members of the Committee had knowledge of the provisions of the 1993 edition of the Manual prior to adoption of the Manual as a rule by FDOT.

    
    

    Definition of "Utility" and "Utility Facilities"

    
    

24. In 1993 the Manual was amended to include "television transmission signals" within the definitions of "utility" and "utility facilities" on page 4 of the Manual. Specifically, the Manual provides:

    
    

    Utility - All privately, publicly or cooperatively owned lines, facilities and systems for producing, transmitting or distributing communications, power, electric- ity, light, heat, gas, oil, crude products, water, steam, waste and storm water not connected with highway drainage, and other similar commodities, including television transmission signals, publicly owned fire

    and police signal systems and street lighting systems, which directly or indirectly serve the public or any part thereof. The term "Utility" shall also mean the UAO, inclusive of wholly owned or controlled subsidiary.

    Utility Facilities - All privately, or publicly or cooperatively owned lines,

    facilities and systems for producing, trans- mitting or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage and other similar commodities, including television transmission signals, fire and police signal system and street lighting systems, which directly or indirectly serve the Public or

    any part thereof.

    
    

25. The 1993 amendment to the Manual to include television transmission signals within the definitions of "utility" and "utility facilities" was adopted at the request of the Committee.

    
    

26. Television transmission signals are transmitted by structures similar to other utilities and utility facilities as defined in the Manual.

    
    

    Joint Use Provisions

    
    

27. The accommodations standards set forth in the Manual, (page 12), provide for the basic requirements governing location of utility installations on state rights-of way. These requirements include a general requirement that for installation of overhead utilities, one side of the right-of-way is reserved for communication lines, and one side for power lines. The basis for this requirement is that the greater number of structures placed in the right-of-way increases the risk of accidents to the traveling public.

    
    

28. It is in the interest of safety for the traveling public for FDOT to minimize the number of structures placed in the state rights-of way. In Florida, between 1990 and 1993, vehicle collisions with utility poles resulted in 297 deaths. Under conditions found in Florida, the density of poles or other structures in the right-of-way is the factor most closely identified with the number of such vehicle accidents.

    
    

29. Since at least 1964, FDOT has required that in cases where more than one utility agency or owner (UAO) proposes an aerial installation on the same side of a highway, a joint use arrangement must be agreed to by the UAOs. This provision is also contained in the 1993 Manual, and specifically provides:

    
    

    For the installation of overhead utilities, one side of the right-of-way is usually reserved for communication lines and the other side is reserved for power lines. In situations where underground and overhead utilities occupy the same side of the roadway, the overhead facility should be placed on the

    outside of the underground facility to provide the maximum clear roadside recovery area possible. In cases where more than one UAO proposes an aerial installation on the same side of the highway, a joint-use arrangement must be

    agreed to by the UAOS.

    Only single pole lines shall be permitted on each side of FDOT's right-of-way. Any

    exception must be amply justified and approved by the State Utility Administrator or designee.

    In cases where the UAOS cannot agree, the dispute shall be referred to the State Utility Administrator or designee whose determination shall be final. This does not prohibit a single UAO from occupying both sides of the right-of-way when there are no objections

    from other UAOS if proper justification is provided to the FDOT, and there is only one pole line on each side of the right-of-way.

    
    

30. As indicated above, in cases where the UAOs cannot agree, the Manual provides that the State Utility Administrator or his designee shall resolve the dispute.

    
    

31. Until this dispute arose between WITHLACOOCHEE and TIME WARNER, FDOT had not been petitioned to resolve a joint use dispute between a power company and cable television company.

    
    

    No Monetary Gain Provision

    
    

32. Contained in the provisions of the Manual setting forth the requirements for making application to use the state right-of-way, there is a prohibition against use of the state right-of-way for profit. Specifically, the Manual on page 5 provides:

    
    

    No individual, firm, company or governmental agency may be permitted to use the FDOT right-of-way for monetary gain except where

    provided for by the Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission.

    
    

33. This provision was adopted in response to complaints received by FDOT that utilities were making a profit from use of the state rights-of-way. Specifically, FDOT had been informed that a company was constructing surplus conduits in the state rights-of-way for the purpose of leasing the use of the conduit to other utilities. Conduit, like poles, is used for communications distribution systems.

    
    

34. The provision was drafted by Richard Larry Noles, an FDOT employee. The provision was provided to the Committee prior to adoption, and was accepted by the Committee with the addition of the provision to allow for monetary gain where provided for by the Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission. Cooperatively-owned utilities, including WITHLACOOCHEE, are not exempted from the no monetary gain provision.

    
    

35. The intent of the no monetary gain provision is to provide equal access to all users of the state rights-of-way, and to prevent subsidization of one utility at the expense of the customers of another utility.

    
    

36. It is not the purpose of the no monetary gain provision to determine the rates charged to customers of a utility.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Sections 120.535, 120.56, and 120.57, Florida Statutes.

    
    

    Standing

    
    

38. For the reasons set forth above, Intervenor, FLORIDA POWER CORPORATION, has substantial interests that are affected in the determination of the issues presented in this case for purposes of establishing standing under the provisions of Rule 60Q-2.010, Florida Administrative Code, and Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 1st DCA 1981). FDOT's and TIME WARNER's Motion to Dismiss Intervenor FLORIDA POWER CORPORATION for lack of standing is accordingly DENIED.

    
    

    Challenge to Unadopted Rules

    
    

39. The pole cost information requested from WITHLACOOCHEE by FDOT is not a "form" soliciting information, and does not constitute an agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency as defined in Section 120.52(16), Florida Statutes.

    
    

40. This case is one of first impression. FDOT has not previously been petitioned to determine a joint use dispute regarding these issues. This is the first instance in which FDOT has made a request for pole cost information.

    Under these circumstances, FDOT's request for information should not be construed to constitute a rule. Florida League of Cities v. Administration Commission, 586 So. 2d 397 (Fla. 1st DCA 1991).

    
    

41. Respondent's Motion for Partial Summary Final Order is accordingly GRANTED.

    
    

    Challenge to Adopted Rules

    
    

42. Petitioner WITHLACOOCHEE, as the party challenging the rules at issue here, has the burden of proving by a preponderance of the evidence that the challenged rules are an invalid exercise of delegated legislative authority. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995); Dravo Basic Materials Co. v. State Department of Transportation, 602 So. 2d 632, 634 (Fla. 2d DCA 1992).

    
    

43. Section 120.52(8), Florida Statutes provides that a rule is invalid if one of the following standards applies:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of

          rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or cont- ravenes the specific provisions of law imple- mented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

          
          

44. The authority cited by FDOT for the challenged rules is Section 337.401, Florida Statutes which provides in pertinent part:

    
    

    1. The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining

       along, across, or on any road or publicly owned rail corridors under their respective jurisdic- tions any electric transmission, telephone, or telegraph lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains, pipelines; fences; gasoline tanks and pumps;

       or other structure hereinafter referred to as the "utility."

    2. The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt.

    No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be respon-

    sible 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.

    
    

45. In considering FDOT's construction and application of this statute under these circumstances, the record reflects that in developing the provisions of the 1993 edition of the Florida Utility Accommodations Manual which are here challenged by Petitioner, FDOT has allowed the affected parties to help shape the provisions which will regulate them. Accordingly, in this respect, it has been held:

    
    

    When as here an agency has responded to rule- making incentives and has allowed affected parties to help shape the rules they know will

    regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency's interpretative powers.

    Permissible interpretations of a statute must and will be sustained, though other interpreta- tions are possible and may even seem preferable according to some views. If the rule binds too tightly to suit them, the appellee developers have their proper remedy in the representative and politically responsive branches, the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer.

    
    

    Department of Health & Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 238, 242 (Fla. 1st DCA 1981).

    
    

46. Moreover, "if an agency's interpretation of its governing statutes is one of several permissible interpretations, it must be upheld, despite the existence of reasonable alternatives." Board of Trustees of Internal Improvement Trust Fund v. Levy, supra, 656 So. 2d at 1363 (Fla. 1st DCA 1995).

    
    

    Definition of Utility and Utility Facilities

    
    

47. Petitioner takes the position that the inclusion of television transmission signals in the definition of "utility" and "utility facilities" enlarges or modifies the authorizing statute. In this respect, however, the authorizing statute Section 337.401(1), Florida Statutes, as set forth above, specifically provides FDOT with the authority to prescribe and enforce reasonable rules and regulation for the use of right-of-way by enumerated utilities and "other structures" which may be referred to as the "utility" for purpose of the statute.

    
    

48. In accordance with the doctrine of ejusdem generis, the inclusion by the Legislature of the more general term "other structures" after the enumeration of the specific utilities, requires that the term "other structures" be construed to refer to things of the same kind or likeness of those things enumerated. Thomas v. City of Crescent City, 503 So. 2d 1299, 1300 (Fla. 2d DCA 1987); Transcom Trailers, Inc. v. Northland Insurance Co., 436 So. 2d 380,

    381 (Fla. 5th DCA 1983).

    
    

49. In this respect, cable television transmission structures are similar to other forms of communication lines, including telephone and telegraph lines which are specifically enumerated in Section 337.401(1), Florida Statutes. The inclusion of television transmission signals in the definition of "utility" and "utility facilities" in the Manual is a reasonable construction of the statute and does not constitute an invalid exercise of delegated legislative authority.

    
    

    The Joint Use Rule

    
    

50. The primary use of the state rights-of-way is for the traveling public. A secondary purpose is for the use of such rights-of-way by utilities. The use of state rights-of-way by a utility is a privilege. Op. Att'y Gen. Fla 067-26 (1967) citing Peninsular Telephone Co. v. Marks, 198 So. 330 (Fla. 1940)

51. The safety of the traveling public is the first concern in the operation and maintenance of the state highway system. Southern Bell Telephone v. State, 75 So. 2d 796, 799 (Fla. 1954).

    
    

52. "Great weight will be given to rules which have been in effect over an extended period and the meaning assigned to them by officials charged with their administration unless clearly erroneous." State Department of Commerce v. Mathews Corporation, 358 So. 2d 256, 260 (Fla. 1st DCA 1978).

    
    

53. The joint use rule as set forth in the Manual has been substantially in effect since at least 1964, and accordingly should be given great weight. Moreover, the joint use rule clearly promotes the safety of the traveling public be minimizing the number of structures located in the state rights-of-way. The joint use rule provides equal access to the state rights-of-way in a reasonable manner for all applicants. There is no evidence that the joint use rule as administered by the FDOT is arbitrary or capricious.

    
    

54. Section 337.401(2), Florida Statutes, as set forth above specifically provides FDOT may grant a permit to use the state rights-of-way in accordance with reasonable rules adopted by FDOT. The joint use rule is a reasonable implementation of the statutory authority provided to FDOT, and the evidence does not establish that the rule is an invalid exercise of delegated legislative authority.

    
    

    The No Monetary Gain Rule

    
    

55. The no monetary gain rule as set forth on page 7 of the 1993 edition of the Manual was adopted with the help and cooperation of the utilities industry and accordingly the interpretation given by the agency should not be overly restricted. Framat Realty, supra, 407 So. 2d at 242.

    
    

56. The no monetary gain rule applies only to those operations of utilities that occur in the state rights-of-way and does not contravene, modify, or enlarge FDOT's authority under Section 337.401, Florida Statutes.

    
    

57. The no monetary gain rule merely prohibits a utility from making a profit in the use of its permit to locate structures in the state rights-of-way. The rule is not vague and does not purport to establish rates which may be charged to customers of a utility.

    
    

58. The no monetary gain rule in conjunction with the joint use rule further promotes the safety of the travelling public by minimizing the number of structures required to be located in the limited space of the state rights-of- way, while balancing the interests of all utility applicants. The no monetary gain rule is a reasonable exercise of the statutory authority granted to FDOT.

    
    

59. The absence of specific methods or formulas for the calculation of whether a utility is in violation of the no monetary gain rule does not require the rule be determined invalid. Any dispute regarding the agency's final determination of the utility pole costs involved in the application and enforcement of the no monetary gain rule may be resolved in accordance with Section 120.57(1), Florida Statutes.

    
    

60. The evidence does not establish that the no monetary gain rule is an invalid exercise of delegated legislative authority.

FINAL ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED

That the Petition for Determination of the Invalidity of Department of Transportation Rules filed in the above-styled case is hereby DISMISSED.

DONE and ENTERED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida.

RICHARD HIXSON, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1995.

APPENDIX

As to Petitioner's and Florida Power's Proposed Findings: 1.-9. Accepted and incorporated.

10.-11. Accepted, but not relevant. 12.-14. Accepted.

15.-17. Accepted and incorporated.

18.-21. Accepted, except that Florida Department of Transportation does not permit monetary gain from the use of state rights of way.

22.-23. Accepted and incorporated.

24. Accepted, but not relevant 25.-30. Accepted and incorporated.

31. Rejected to the extent that Florida Department of Transportation has the ability to determine profit and apply the no monetary gain rule.

32.-33. Accepted and incorporated.

34. Rejected as not supported by weight of evidence. 35.-39. Accepted and incorporated.

40. Rejected, as to Florida Department of Transportation's statements of intent.

41.-42. Accepted but not relevant

43.-46. Rejected as not supported by weight of evidence. 47.-54. Rejected, see paragraph 31.

55.-58. Accepted, but not relevant. 59.-63. Rejected, see paragraph 31. 64.-66. Accepted and incorporated.

67. Rejected as irrelevant.

68.-69. Rejected as not supported by weight of evidence. 70.-72. Accepted and incorporated.

73. Rejected as to experts conclusions.

As to Respondent's and Time Warner's Proposed Findings. 1.-7. Accepted and incorporated.

8.-12. Conclusions of law.

13.-18. Accepted and incorporated 19.-25. Accepted and incorporated.

1. Conclusions of law.

2. Accepted and incorporated.

3. Conclusions of law.

29.-36. Accepted and incorporated.

37. Conclusions of law.

COPIES FURNISHED:

James Harold Thompson, Esquire

R. Stan Peeler, Esquire Macfarlane Ausley Ferguson &

McMullen

227 South Calhoun Street Tallahassee, Florida 32302

Marvin Barkin, Esquire Edward C. LaRose, Esquire

Trenam, Kemker, Scharf, Barken, Frye, O'Neill & Mullis, P.A.

2700 Barnett Plaza

101 East Kennedy Boulevard Tampa, Florida 33602

Cindy S. Price, Esquire

Murray Wadsworth, Jr., Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Suite 500

215 South Monroe Street Tallahassee, Florida 32301

Gardner F. Gillespie, Esquire Hogan & Hartson

555 Thirteenth Street, N.W. Washington, D.C. 20004

John H. Haswell, Esquire Chandler, Lang & Haswell, P.A.

211 East First Street Gainesville, Florida 32601

Michelle L. Hershel, Esquire 2916 Apalachee Parkway

Tallahassee, Florida 32302

Frederick M. Bryant, Esquire Moore, Williams, Bryant, Gautier

& Donohue

Post Office Box 1169 Tallahassee, Florida 32302

Jeffery A. Froeschle, Esquire 3201 Thirty-fourth Street South St. Petersburg, Florida 33711

Ben W. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0250

Thornton J. Williams General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings, and a second copy accompanied by filing fees prescribed by law with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-004221RU

Orders for Case No: 95-004221RU