Section 291-5-007 - DARK FIBER LEASING007.01Statutory Authority: This section is adopted pursuant to 2001 Laws Neb. 827.
007.02Definitions: As used in this section, unless the context otherwise requires, the following definitions apply
007.02A Applicant means a party filing an application.007.02B Commission means the Nebraska Public Service Commission.007.02C Cost of infrastructure overbuilding means the cost of each leased optic fiber, including the cost, on a pro rata basis, associated with the agency or political subdivision(s installation of such fiber.007.02D Dark fiber means any unused fiber optic cable through which no light is transmitted or any installed fiber optic cable not carrying a signal.007.03Lease: Any agency or political subdivision of the state may lease its dark fiber if
007.03A The lessee is a certificated telecommunications common carrier or a permitted telecommunications contract carrier pursuant to Nebraska Revised Statutes section 75-604 or an Internet service provider; and007.03B The lease price and profit distribution is approved by the Commission as provided by Commission rules and regulations.007.04Application Process: Before entering into a lease, an agency or political subdivision must
007.04A File an application with the Commission pursuant to the Nebraska Administrative Code, Title 291, Chapter 1, Rules of Commission Procedure, Section 005.02. 007.04A1 In addition to requirements of the Nebraska Administrative Code, Title 291, Chapter 1, Rules of Commission Procedure, Section 005.02, an application shall include 007.04A1a A request for a competitive price comparison to determine market rate, and007.04A1b A request for determination of the cost of infrastructure overbuilding.007.04A2 At the discretion of the applicant, the applicant may propose a lease price and a profit distribution in the application.007.04A3 Notice of the filing of all applications pursuant to this section shall be given by publication pursuant to Nebraska Administrative Code, Title 291, Chapter 1, Rules of Commission Procedure.007.05Protest, Intervention: Any protest or formal intervention to an application shall be made pursuant to Nebraska Administrative Code, Title 291, Chapter 1, Rules of Commission Procedure.
007.06Competitive Price Comparison and Cost of Infrastructure Overbuilding Determination: The Commission shall hold a public hearing (a) to conduct a competitive price comparison to determine the market rate for leasing dark fiber and (b) to determine the cost of infrastructure overbuilding.
007.06A The market rate is the price associated with similar unbundled network elements that may be available from the incumbent local exchange carrier or the price of any other private entity leasing dark fiber optic facilities serving the same or similar territory where the leased equipment is located.007.06B When conducting a competitive price comparison, the Commission in its discretion shall use rate schedules, interconnection agreements, or other documents within its regulatory oversight and shall gather other market rate information as deemed necessary.007.06C The agency or political subdivision that owns the fiber shall provide the Commission with documentation of its cost of infrastructure overbuilding.007.07Order: The Commission shall enter an order setting the market rate and cost of infrastructure overbuilding to be applied to the lease for which the application was made, and, if the application proposed a lease price and a profit distribution, the Commission shall approve or deny the lease price and profit distribution.
007.07AProposed Lease Price and Profit Distribution in Application Disapproved; Amended Lease Price and Profit Distribution: If the application included a proposed lease price and profit distribution, and the Commission did not approve the lease price and profit distribution, or, if the applicant elected not to propose a lease price and profit distribution in its application, the following process shall apply 007.07A1 The applicant shall file a revised lease price and profit distribution that comports with the Commission's order setting the market rate and cost of infrastructure overbuilding. The applicant shall serve notice of such filing upon all protestants and intervenors.007.07A2 The Commission shall approve or deny the lease price and profit distribution by entering an order.007.08Modified Procedure for Subsequent Leases by an Applicant: A party, having obtained approval of a lease price and profit distribution, may seek to apply the same lease price and profit distribution to subsequent leases in the same or similar territory within two years of the original order establishing lease price and profit distribution. The application and notification shall conform to the process set forth at Title 291, Chapter 5, Section 007.04 and shall include a sworn affidavit verifying that the applicant(s cost of infrastructure overbuilding has not changed since the original proceeding. Protest or intervention shall not be permitted. The Commission shall conduct a competitive price comparison to determine the market rate and shall determine the cost of infrastructure overbuilding within 30 days from the publication of notice of the application. The Commission shall conduct a competitive price comparison and determine the cost of infrastructure overbuilding either (1) by use of sworn affidavits from the applicant and from Commission staff or (2) by holding a public hearing.
007.09Lease Requirements: The following shall be required in order for the Commission to approve a lease of dark fiber
007.09AFiber Maintenance: A lease shall require that the agency or political subdivision be solely responsible for the maintenance of its dark fiber and that the lessee be responsible, on a pro rata basis, for any such maintenance costs.007.09BDisposition of Profits: Fifty percent of the profit earned by the agency or political subdivision under the lease shall be remitted to the Nebraska Internet Enhancement Fund. 007.09B1 Profit earned by the agency or political subdivision is the lease price less the cost of infrastructure overbuilding.007.09B2 The agency or political subdivision may remit profits using forms or methods which may be developed by the Commission.007.09B3 Each payment by the lessee under any dark fiber lease approved by the Commission shall be comprised of both cost of infrastructure overbuilding and profit. The ratio of cost of infrastructure overbuilding to profit shall be the same for each payment. Profits must be remitted within 60 days of receipt of payment pursuant to a lease.007.10Approval of Interconnection Agreements: Any interconnection agreement subject to subsection (2) of section 75-109 must be approved by the Commission.
007.11Dark Fiber Activation: The lessee shall make every reasonable effort to activate the maximum number of the leased fiber as is possible, within one year of entering into the lease, unless good cause is shown.
007.11A The lessee shall report to the Commission its efforts to activate dark fiber within one year of the Commission=s approval of a lease price and profit distribution.291 Neb. Admin. Code, ch. 5, § 007