Section 291-5-013 - TELECOMMUNICATION LINES, WIRES, OR CABLES CROSSING RAILROAD RIGHT-OF-WAYS013.01Definitions: For purposes of this section, the definitions in Section 001.01 shall apply except that as used in this section and unless the context otherwise requires
013.01A Railroad carrier has the same meaning as in Neb. Rev. Stat. Section 75-402.013.01B Railroad has the same meaning as in Neb. Rev. Stat. Section 75-402.013.01C Telecommunications carrier means a telecommunications common carrier or a telecommunications contract carrier.013.02Crossing Agreements; Failure To Reach Agreement; Petition for Hearing: Any telecommunications carrier that intends to place a line, wire, or cable across a railroad right-of-way shall request permission for such placement from the railroad carrier.
013.02AApplications for Crossing: The request shall be in the form of a completed crossing application, and shall include engineering specifications.013.02BBinding Agreement: Upon receipt of such application, the railroad carrier and the telecommunications carrier may enter into a binding wire-crossing agreement including terms pursuant to Section 013.04.013.02CPetition for Hearing: If the railroad carrier and the telecommunications carrier are unable to negotiate a binding wire-crossing agreement within sixty (60) days after receipt of the completed crossing application pursuant to subsection 013.02A by the railroad carrier, either party may submit a petition to the commission for a hearing on the disputed terms and conditions of the wire-crossing agreement.013.02DPetition Requirements: A party that files a petition for hearing under Section 003.02C shall include all relevant documentation concerning the disputed terms and conditions and the position of the petitioning party with respect to those issues.013.02ENotice of Petition: A party that submits a petition for hearing under Section 013.02C shall serve a copy of the petition and any other documentation on the other party or parties not later than the day on which the Commission receives the petition for hearing.013.02FOpportunity to Respond: The non-petitioning party under Section 013.02C shall respond to the petition and provide any relevant documentation concerning the unresolved issues and the position of the non-petitioning party with respect to those issues within twenty (20) days after service of the petition.013.02GAction by the Commission: 013.02G1 Hearing: Unless otherwise agreed to by all parties, the Commission shall, after providing proper notice, hold and complete a hearing on the disputed wire-crossing agreement within sixty (60) days after receipt of a petition for hearing.013.02HCommission Consideration: In rendering its decision, the Commission shall consider whether the terms and conditions at issue are unreasonable or against the public interest, taking into account safety, engineering, and access requirements of established rail industry standards, including but not limited to those prescribed and outlined in the following 013.02H1 The Commission may require the parties to provide such information as may be necessary for the Commission to reach a decision on the unresolved issues.013.02ICommission Order: The Commission shall have thirty (30) days from the date of hearing to issue an order resolving each issue set forth in the petition and the response with written findings and opinions.013.03Submission of Agreement to the Commission: Upon issuance of an order by the Commission on the petition submitted pursuant to Section 013.02C, the parties will have fifteen (15) days in which to file a conforming wire crossing agreement with the Commission. The Commission shall have fifteen (15) days from the date of filing the conforming agreement to approve or reject the agreement or the agreement will be deemed approved.
013.03ANon-conforming Agreement: The Commission may reject a wire crossing agreement submitted by the parties pursuant to Section 013.03 if it finds that the wire crossing agreement does not conform to the order issued by the Commission. If the Commission enters such a finding, the parties shall revise the agreement to comply with the Commission's order and shall file the revised agreement with the Commission within ten (10) days. If the Commission does not approve or reject the revised agreement within fifteen (15) days after the date of filing, the agreement shall be deemed approved.013.04Wire Crossing Agreement Terms: 013.04AStandard Crossing Fee: Except as provided in Section 013.04D, or as otherwise agreed to by all parties, if a telecommunications carrier places a line, wire, or cable across a railroad right-of-way pursuant to Section 013, it shall pay the railroad carrier, owner, manager, agent, or representative of the railroad carrier a one-time standard crossing fee of one thousand two hundred fifty dollars ($1,250.00) for each applicable crossing. 013.04A1One-Time Fee: The one-time crossing fee, with or without special circumstances as provided in Section 013.04D, shall be for the life of the line, wire, or cable placed across the railroad right-of-way.013.04BFlagging Expenses: In addition to the standard crossing fee as provided in Section 013.04A, the telecommunications carrier shall reimburse the railroad carrier for any actual flagging expenses associated with the placement of the line, wire, or cable.013.04COther Fees Prohibited: The standard crossing fee as provided in Section 013.04A shall be in lieu of any license fee or any other fees or charges to reimburse the railroad carrier for any direct expense incurred as a result of the placement of the line, wire, or cable. Fees prohibited include, but are not limited to, application fees and processing fees.013.04DSpecial Circumstances: If a railroad carrier or telecommunications carrier believes a special circumstance exists for the placement of a line, wire, or cable across a railroad right-of-way, the railroad carrier or telecommunications carrier may petition the Commission for additional requirements or modification of the standard crossing fee in its initial petition to the Commission pursuant to Section 013.02C. The Commission shall determine if a special circumstance exists that necessitates additional requirements for such placement or a modification of the standard crossing fee.013.04EIndemnification Clauses: 013.04E1 Any provision, clause, covenant, or agreement contained within the wire-crossing agreement, collateral to the agreement, or affecting such agreement between a rail-road carrier and a telecommunications carrier that purports to indemnify, defend, or hold harmless the railroad carrier from any liability for loss or damage resulting from the negligence or willful and wanton misconduct of the railroad carrier, its agents, employees, or independent contractors who are directly responsible to the railroad carrier are prohibited.013.04E2 Any provision, clause, covenant, or agreement contained within the wire-crossing agreement, collateral to the agreement, or affecting such agreement between a rail-road carrier and a telecommunications carrier that purports to indemnify, defend, or hold harmless the telecommunications carrier from any liability for loss or damage resulting from the negligence or willful and wanton misconduct of the telecommunications carrier, its agents, employees, or independent contractors who are directly responsible to the telecommunications carrier are prohibited.013.04E3 Nothing in this section shall affect a provision, clause, covenant, or agreement in which the telecommunications carrier indemnifies, defends, or holds harmless a railroad carrier against liability for loss or damage to the extent that the loss or damage results from the negligence or willful and wanton misconduct of the telecommunications carrier or its agents, employees, or independent contractors who are directly responsible to the telecommunications carrier.013.05Appeals: A party seeking to obtain reversal, modification, or vacation of an order entered by the Commission pursuant to this Section may appeal such order in accordance with the state's Administrative Procedure Act.
291 Neb. Admin. Code, ch. 5, § 013