State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter86 > 86-164

86-164. Telecommunications carrier; placementof line, wire, or cable across railroad right-of-way; application; petition;hearing; order; standard crossing fee; expenses; agreement.(1) Any telecommunicationscarrier that intends to place a line, wire, or cable across a railroad right-of-wayshall request permission for such placement from the railroad carrier. Therequest shall be in the form of a completed crossing application, includingengineering specifications. Upon receipt of such application, the railroadcarrier and the telecommunications carrier may enter into a binding wire-crossingagreement. If the railroad carrier and the telecommunications carrier areunable to negotiate a binding wire-crossing agreement within sixty days afterreceipt of the crossing application by the railroad carrier, either partymay submit a petition to the commission for a hearing on the disputed termsand conditions of the purported wire-crossing agreement.(2)(a) Unlessotherwise agreed to by all parties, the commission shall, after providingproper notice, hold and complete such hearing within sixty days after receiptof the petition. The commission shall issue an order of its decision withinthirty days after the hearing. In rendering its decision, the commission shallconsider whether the terms and conditions at issue are unreasonable or againstthe public interest, taking into account safety, engineering, and access requirementsof the railroad carrier as such requirements are prescribed by the FederalRailroad Administration and established rail industry standards.(b) Upon issuanceof an order by the commission under subdivision (a) of this subsection, therailroad carrier and the telecommunications carrier shall have fifteen daysafter the date of issuance to file a conforming wire-crossing agreement withthe commission. The commission shall have fifteen days after the date of suchfiling to approve or reject the agreement. If the commission does not issuean approval or rejection of such agreement within the fifteen-day requirement,the agreement shall be deemed approved. The commission may reject a wire-crossingagreement if it finds that the agreement does not conform to the order issuedby the commission. If the commission enters such a finding, the parties shallrevise the agreement to comply with the commission's order and shall refilethe agreement to the commission for further review. If the commission doesnot approve or reject the revised agreement within fifteen days after thedate of refiling, the agreement shall be deemed approved.(3)(a) Exceptas provided in subsection (4) of this section or as otherwise agreed to byall parties, if a telecommunications carrier places a line, wire, or cableacross a railroad right-of-way pursuant to this section, it shall pay therailroad carrier a one-time standard crossing fee of one thousand two hundredfifty dollars for each applicable crossing. In addition to the standard crossingfee, the telecommunications carrier shall reimburse the railroad carrier forany actual flagging expenses associated with the placement of the line, wire,or cable.(b) The standard crossing fee shall be in lieu of any license feeor any other fees or charges to reimburse the railroad carrier for any directexpense incurred as a result of the placement of the line, wire, or cable.(4) If a railroadcarrier or telecommunications carrier believes a special circumstance existsfor the placement of a line, wire, or cable across a railroad right-of-way,the railroad carrier or telecommunications carrier may petition the commissionfor additional requirements or for modification of the standard crossing feein its initial petition to the commission pursuant to subsection (1) of thissection. If the petition is filed with the request for additional requirementsor modification, the commission shall determine if a special circumstanceexists that necessitates additional requirements for such placement or a modificationof the standard crossing fee.(5) This section applies to any telecommunicationscarrier certified by the commission pursuant to section 86-128. This sectiondoes not apply to any longitudinal encumbrance or any line, wire, or cablewithin any public right-of-way and does not change, modify, or supersede anyrights or obligations created pursuant to sections 86-701 to 86-707.(6)(a) A wire-crossingagreement between a railroad carrier and a telecommunications carrier thatincludes a provision, clause, covenant, or agreement contained in, collateralto, or affecting such wire-crossing agreement that purports to indemnify,defend, or hold harmless the railroad carrier from any liability for lossor damage resulting from the negligence or willful and wanton misconduct ofthe carrier or its agents, employees, or independent contractors who are directlyresponsible to such carrier or has the effect of indemnifying, defending,or holding harmless such carrier from the negligence or willful and wantonmisconduct of the carrier or its agents, employees, or independent contractorswho are directly responsible to the carrier is against the public policy ofthis state and is unenforceable.(b) Nothing in this section shall affecta provision, clause, covenant, or agreement in which the telecommunicationscarrier indemnifies, defends, or holds harmless a railroad carrier againstliability for loss or damage to the extent that the loss or damage resultsfrom the negligence or willful and wanton misconduct of the telecommunicationscarrier or its agents, employees, or independent contractors who are directlyresponsible to the telecommunications carrier.(7) For purposes of thissection:(a) Railroad carrier has the same meaning as in section 75-402;and(b) Telecommunications carrier means a telecommunications commoncarrier as defined in section 86-118 or a telecommunications contract carrieras defined in section 86-120. SourceLaws 2010, LB181, § 2.Effective Date: July 15, 2010