HB2224: Broadband service providers; fiber optic broadband lines, railroad crossings.

HOUSE BILL NO. 2224

Offered January 13, 2021
Prefiled January 13, 2021
A BILL to amend the Code of Virginia by adding a section numbered 56-16.3, relating to broadband service providers; fiber optic broadband lines; railroad crossings.
Patron-- Head

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 56-16.3 as follows:

§ 56-16.3. Fiber optic broadband lines crossing railroads.

A. As used in this section:

"Broadband service" means high-speed Internet service that is delivered through a fiber optic broadband line.

"Broadband service provider" means an entity that provides broadband service through utilization of a fiber optic broadband line and that has obtained all governmental approvals required for the provision of broadband service.

"Crossing" means the construction, operation, repair, or maintenance by a broadband service provider of a fiber optic broadband line over, under, or across a railroad right-of-way.

"Fiber optic broadband line" means the medium used in the transmission of data as pulses of light through a strand or fiber medium made of glass or plastic.

"Notice of intent to construct" means a notice submitted by a broadband service provider to a railroad company establishing the broadband service provider's desire to cross the works of a railroad company. A "notice of intent to construct" shall include (i) the one-time standard crossing fee described in subsection C, unless another fee is agreed to by the broadband service provider and the railroad company, and (ii) a specification exhibit.

"Special circumstances" means the existence of characteristics of a segment of railroad right-of-way or of a proposed fiber optic broadband line that (i) increase the direct expenses associated with a proposed crossing or that enhance the segment's value above that of a typical segment of railroad right-of-way, (ii) involve a significant and imminent likelihood of danger to the public health or safety, (iii) create a serious threat to the safe operations of the railroad, or (iv) create a serious threat to the current use of the railroad right-of-way, necessitating additional terms and conditions associated with the crossing.

"Specification exhibit" means a set of documents that shows the location of the crossing, the railroad right-of-way, and the railroad company's tracks, wires, and other improvements that the fiber optic broadband line will cross.

B. If a broadband service provider desires to cross the works of a railroad company and the parties thereto cannot agree on the manner of the crossing or the compensation to be paid or the damages, if any, occasioned by such crossing, then the broadband service provider may acquire the rights to make a crossing of such works by submitting to the railroad company a notice of intent to construct. The notice, including the specification exhibit, shall be submitted to the railroad company by certified mail, return receipt requested. The broadband service provider shall use its best efforts to submit the specification exhibit on a form provided or approved by the railroad company and approved by the Commission pursuant to subsection K. The specification exhibit included with the notice to construct shall constitute the broadband service provider's warranty that the fiber optic broadband line that is the subject of the specification exhibit will be constructed and installed as shown on the specification exhibit.

C. Unless otherwise agreed to by the broadband service provider and the railroad company, or unless a special circumstance exists, a broadband service provider that locates its fiber optic broadband line within a railroad right-of-way shall pay to the railroad company for the right to make a crossing of the railroad company's works a standard crossing fee of $750 for each crossing. The payment shall be a one-time payment, in lieu of any license fees, to reimburse the railroad company for direct expenses incurred by the railroad company as a result of the construction of the fiber optic broadband line and, if applicable, to compensate the railroad company for the locating of the fiber optic broadband line within the railroad right-of way. Unless otherwise agreed to by the broadband service provider and the railroad company, the one-time payment shall not apply to any fiber optic broadband line that was located within a railroad right-of-way before July 1, 2021.

D. If the railroad company asserts that special circumstances exist for a particular crossing, the railroad company may petition the Commission for relief. If a petition for relief is filed, the Commission shall determine whether special circumstances exist that necessitate either the payment of compensation in addition to the standard crossing fee or the need for additional terms and conditions. The Commission may make any necessary findings of fact and determinations related to the existence of special circumstances, as well as any relief to be granted, including any amount to which the railroad company is entitled in excess of the one-time standard crossing fee prescribed in subsection C. A determination of the Commission shall be considered a final action that may be appealed as provided in § 12.1-40. The Commission shall assess the costs associated with a petition for relief equitably against the parties. The Commission may employ expert engineers, at a cost not exceeding $500, to be paid equally by the railroad company and the broadband service provider, who shall, with the Commission, or some member thereof, or such person as the Commission may designate, (i) examine the notice of intent to construct, location, plans, specifications, and methods proposed to be employed and (ii) hear any objections and consider any modifications that the railroad company whose works are to be crossed desires to offer.

E. If grade crossing markings or signs are damaged during construction of a fiber optic broadband line, the party responsible for the damage shall pay the replacement costs, unless otherwise agreed to by the parties.

F. Every notice of intent to construct submitted pursuant to subsection B shall include, in addition to the specification exhibit, (i) a description of the means the broadband service provider proposes to employ to protect persons and property on the premises of the railroad company, (ii) evidence of insurance coverage as may be required pursuant to regulations adopted by the Commission pursuant to subdivisions I 2 and 3, (iii) a statement of the conditions under which usage of the crossing will terminate and all interests revert to the railroad company, and (iv) a description of the means that the broadband service provider proposes to employ to prevent interference with the unlimited use of the railroad right-of-way by the railroad company, including the communication and transportation systems on the railroad right-of-way.

G. After 35 days from the mailing by the broadband service provider of the notice of intent to construct, the broadband service provider, absent a claim by the railroad company of special circumstances or a claim that the information contained in the specification exhibit is inadequate or incomplete, shall be deemed to have authorization to commence construction of the fiber optic broadband line that is the subject of the specification exhibit. If the broadband service provider does not commence construction within 120 days from the later of (i) the date that the broadband service provider is deemed to have authorization to commence construction of the fiber optic broadband line or (ii) the date that the broadband service provider provides to the railroad company changes to the specification exhibit that address the railroad company's claim that the information contained in the specification exhibit is inadequate or incomplete, the authorization to commence construction shall expire and the fee may be retained by the railroad company. If the broadband service provider subsequently desires to proceed with construction of the fiber optic broadband line that was the subject of the notice of intent to construct, the broadband service provider shall again submit a notice of intent to construct as provided in subsection B.

H. Pending the Commission's resolution of a claim of special circumstances raised in a petition filed pursuant to subsection D, a broadband service provider, upon compliance with all other applicable provisions of this section and securing, in a manner approved by the Commission, the payment of an amount sufficient for the removal of the fiber optic broadband line constructed by the broadband service provider, may proceed with construction of the fiber optic broadband line unless the Commission intervenes to enjoin its construction.

I. The Commission shall adopt regulations prescribing the terms and conditions for a crossing. The regulations shall provide that any crossing be consistent with the public convenience and necessity and the provision of reasonable service to the public. In addition, the regulations shall address the following:

1. Notification required prior to the commencement of any crossing activity;

2. A requirement that the railroad company and the broadband service provider each maintain and repair the person's own property within the railroad right-of-way, and bear responsibility for each person's own acts and omissions, except that the broadband service provider shall be responsible for any bodily injury or property damage that typically would be covered under a standard railroad protective liability insurance policy;

3. The amount and scope of insurance or self-insurance required to cover risks associated with a crossing;

4. A procedure to address the payment of costs associated with the relocation of fiber optic broadband lines within the railroad right-of-way necessary to accommodate railroad operations;

5. Terms and conditions for securing the payment of any damages by the broadband service provider before it proceeds with a crossing;

6. Immediate access to a crossing for repair and maintenance of existing facilities in case of emergency;

7. Engineering standards for fiber optic broadband lines crossing railroad rights-of-way; and

8. Other terms and conditions necessary to provide for the safe and reasonable use of a railroad right-of-way by a broadband service provider and consistent with rules adopted by the Commission, including any complaint procedures adopted by the Commission to enforce the regulations.

J. Regulations adopted by the Commission pursuant to subsection I shall not prevent a railroad company and a broadband service provider from otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to such crossing.

K. By August 1, 2021, each railroad company shall submit for Commission review and approval proposed specification exhibit forms for use with notifications by broadband service providers of intent to construct. Approved specification exhibit forms shall not subsequently be revised or amended by a railroad company without Commission approval.