Tenn. Comp. R. & Regs. 1680-06-01-.09
The Department of Transportation reserves a perpetual right at any time to cross the underground fiber optic cable lines and related facilities for any purpose related to the construction, reconstruction, operation or maintenance of the highway as determined by the Department.
The telecommunications company may not assign or transfer its rights or obligations under the Use and Occupancy Agreement to another telecommunications company or other entity or person without first giving written notice to, and obtaining the consent of, the Department of Transportation, which consent shall not be unreasonably withheld.
The telecommunications company shall at all times have and maintain, and upon the request of the Department of Transportation shall provide written proof of, liability insurance policies containing, at a minimum, the following insurance coverage:
The telecommunications company shall furnish a surety bond, issued by a company licensed to do business in the State of Tennessee, and in such form and amount acceptable to the Department of Transportation, guaranteeing full and faithful performance of the terms and conditions of the Use and Occupancy Agreement, including without limitation the repair and restoration of the right-of-way premises, the payment of any monetary compensation remaining due to the Department for use of the freeway right-of-way, and the completion of any installation of fiber optic facilities to be provided to the Department as compensation under the Use and Occupancy Agreement.
The Use and Occupancy Agreement for the longitudinal installation of fiber optic facilities within state freeway rights-of-way shall have an initial term of 10 years, 20 years, 30 years, or 40 years, at the option of the telecommunications company.
Upon the expiration of the initial term of the Use and Occupancy Agreement, the telecommunications company shall have an option to renew the Use and Occupancy Agreement for a term of 10 years, 20 years, or 30 years, subject to the applicable rate of compensation established by the Advisory Board as of the date of renewal; provided that the initial term and any successive renewal terms shall not exceed a combined total of 40 years.
The total amount of compensation due for use of the right-of-way shall be fixed as of the date of execution of the Use and Occupancy Agreement, in accordance with the rate and method of valuation of in-kind compensation established by the Advisory Board at that time, and in accordance with the type of right-of-way, the method of remittance and the term of the Use and Occupancy Agreement selected by the telecommunications company.
If the Department of Transportation chooses to receive in-kind compensation under a Use and Occupancy Agreement, it shall provide the telecommunications company with a list of the specific telecommunications facilities and/or services that it wishes to obtain. The value of such in-kind compensation, as determined in accordance with the method of valuation established by the Advisory Board, shall be subtracted from the total amount of monetary compensation due for use of the right-of-way and the remaining balance, if any, shall be remitted as monetary compensation.
To minimize interference with the safe use, operation and maintenance of the freeway, and as reasonably necessary to manage the right-of-way, the Department of Transportation may limit the timing of access so that, to the extent possible, there is no more than one fiber optic cable installation project underway at any given time on any particular segment of a state freeway.
In order to preserve the availability and efficient use of freeway rights-of-way, and as reasonably necessary to manage such rights-of-way, the Department of Transportation, as a general rule, will not permit fiber optic cable installations of less than a total length of twenty-five (25) miles along any state freeway or combination of state freeways. Exceptions may be considered on a case-by-case basis.
To minimize interference with the safe use, operation and maintenance of the freeway, longitudinal installations of fiber optic cable facilities shall be located outside the clear zone and as near to the outer edge of the right-of-way line as is reasonably practical; provided, however, that alternative locations within the right-of-way, including the clear zone, may be permitted where the Department of Transportation determines that it is not reasonably practical to locate the fiber optic cable facility along the outer edge of the right-of-way and that the use of the alternative location is consistent with the Department's goal to minimize interference with the safe use, operation and maintenance of the freeway.
As a general rule, subsequent installations of underground fiber optic cable facilities outside the clear zone shall be located not less than five feet (5') from any previously installed underground fiber optic cable line or other utility installation, if any, within the freeway right-of-way. Exceptions may be considered on a case-by-case basis and as may be reasonably necessary to manage the state freeway right-of-way.
All underground fiber optic cable lines shall be located and installed in accordance with the minimum depths established in Paragraph 1680-6-1-.06(2) of this Chapter, as amended, or at such greater depths as the Department of Transportation may require as a special condition of the Use and Occupancy Agreement.
Devices for accessing underground fiber optic cable facilities for routine service or site visits shall not be allowed within the clear zone of the freeway, except as the Department of Transportation may otherwise expressly permit or require.
All above-ground support facilities for underground fiber optic cable lines shall be located outside the clear zone and as near to the outer edge of the right-of-way line as is reasonably practical. No above-ground facility may be located on the freeway right-of-way without the express written approval of the Department of Transportation, and preference will be given to locations at interchanges, rest areas and welcome centers, weigh stations, and highway crossings.
The attachment of fiber optic cable facilities to freeway structures - including without limitation bridges, overpasses, underpasses, culverts and tunnels - shall be permitted only with the prior written approval of the Director of the Structures Division, in accordance with Rule 1680-6-1-.05.
Service connections to adjacent properties shall not be permitted from fiber optic cable installations within the access control limits of the freeway right-of-way, except at interchanges or other locations approved in writing by the Department of Transportation.
The installation of fiber optic cable facilities may be permitted within the clear zone of a state freeway under special circumstances where the Department of Transportation determines that it is not reasonably practical to locate the fiber optic cable facility outside the clear zone and that the installation of fiber optic cable facilities within the clear zone may be done in a manner that is consistent with the Department's goal to minimize interference with the safe use, operation and maintenance of the freeway.
In order to minimize interference with the safe use, operation and maintenance of the freeway, and as reasonably necessary to manage the right-of-way, the Department of Transportation reserves the right to restrict the total number of installations within the clear zone to no more than one installation on any particular segment of a state freeway.
A telecommunications company requesting permission for the longitudinal installation of fiber optic cable facilities within the clear zone of a state freeway may be required to comply with the following terms and conditions, without limitation as to such additional terms and conditions as may be included in the Use and Occupancy Agreement:
The telecommunications company shall comply with the Tennessee One-Call Service as provided in Section 65-31-107 of the Tennessee Code, or as it may be amended.
The telecommunications company shall be responsible for obtaining all approvals and/or permits that may be required for activities authorized under this Rule, including without limitation all environmental permits and federal regulatory approvals or permits, if applicable.
The following minimum controls shall apply to the installation, servicing and maintenance of all fiber optic cable facilities within state freeway rights-of-way, in addition to such other requirements as the Department of Transportation may provide as a general or special condition of the Use and Occupancy Agreement:
Before commencing any installation, servicing or maintenance of a fiber optic cable facility, the telecommunications company shall submit an installation and maintenance plan to the Department of Transportation for review and approval, and upon approval such plan shall be made a part of the Use and Occupancy Agreement. At a minimum, the installation and maintenance plan shall specify:
Open cutting or trenching of the freeway's pavement structure, including without limitation the traveled way, shoulders and access ramps, shall not be permitted. Wherever the Department of Transportation permits a crossing of the freeway pavement structure in accordance with this Rule, the crossing shall be accomplished by boring or other untrenched method as approved by the Department.
When blasting is necessary, the telecommunications company shall follow the guidelines established in Rule 1680-6-1-.07.
The telecommunications company shall not be permitted to park vehicles and equipment or to store materials on the freeway right-of-way without express prior approval by the Department of Transportation. In no case shall the telecommunications company be permitted to park vehicles and equipment or store materials within the clear zone of the freeway, except as may be required during actual installation operations within the clear zone and while all required traffic control is present and in place.
Before performing any non-emergency servicing or maintenance of a fiber optic cable facility at any location within the freeway right-of-way and before performing any installation of a fiber optic cable facility within the clear zone or where access to the utility work zone has been permitted from the traveled way, shoulders or access ramps of the freeway, the telecommunications company shall give at least five (5) work days advance notice thereof to the Regional Director of the Department of Transportation Region in which the work is to be performed.
The telecommunications company shall notify the appropriate Regional Director of the Department of Transportation as soon as possible, and in any event not more than twenty-four (24) hours, after the occurrence of an event requiring emergency maintenance or repair of a fiber optic cable facility within the freeway right-of-way, or as otherwise specified in the installation and maintenance plan approved by the Department.
If the telecommunications company fails to comply with the traffic control plan or any other provision of the installation and maintenance plan, or if any activity of the telecommunications company within the freeway right-of-way interferes with the safe and efficient use of the freeway as determined by the Department of Transportation, the telecommunications company shall immediately cease such activity upon notice being given by the Department, and the telecommunications company shall thereafter work with the Department to bring its activities into compliance with the installation and maintenance plan and/or implement such additional safety requirements as may be specified by the Department.
If at any time during the installation of fiber optic cable facilities within the freeway right-of-way the telecommunications company encounters an area having ecological, historical or archaeological significance under federal or state law, the telecommunications company shall immediately notify the Department of Transportation and cease installation operations in that area until receiving further instructions from the Department of Transportation.
The cutting or removal of trees along the freeway right-of-way shall not be permitted without the express approval of the Department of Transportation.
The telecommunications company shall not place, install or deposit any hazardous substance or hazardous waste within or on any part of the state freeway or state freeway right-of-way. If at any time the telecommunications company causes or allows a spill of a hazardous waste or substance within the freeway right-of-way, the telecommunications company shall remain solely liable for the clean-up and removal of such hazardous waste or substance. The telecommunications company shall indemnify the State of Tennessee and Department of Transportation, and their officers, employees and agents, and shall hold them harmless against any and all claims or expenses of any kind related to the deposit, spillage and/or clean-up of any such hazardous wastes or substances.
Where the Department of Transportation requests in-kind compensation for the use of state freeway rights-of-way in accordance with Section 54-16-112 of the Tennessee Code and this Rule, the telecommunications company shall provide pull boxes, splice boxes and/or other access points at such intervals and locations as the Department of Transportation may require. Covers for such access points shall be traffic rated in accordance with the requirements of the Department of Transportation's Standard Specifications for Road and Bridge Construction, and each cover shall be marked to identify it as a fiber optic cable facility.
All work performed within state freeway right-of-way or otherwise on state property, including without limitation any work performed for the Department of Transportation, shall be subject to inspection by the Department. The Department shall have the authority to reject substandard work or materials and/or to suspend or stop work, in whole or part, where the telecommunications company fails to comply with any requirement of this Rule or the Use and Occupancy Agreement, or where any unsafe or hazardous condition exists.
The telecommunications company shall install permanent above-ground markers indicating the location of its underground fiber optic cable facilities at such intervals as the Department of Transportation may approve or require in the installation and maintenance plan. These markers shall not interfere with the safe use, operation and maintenance of the freeway, nor shall they constitute a hazard to the traveling public.
"As-built" drawings of all underground and aboveground fiber optic cable facilities located on the state freeway right-of-way shall be submitted to the Department of Transportation upon completion of any installation or relocation.
Rate Sheet
Underground Fiber Optic Facilities Advisory Board
The Advisory Board hereby adopts the following fair, reasonable and nondiscriminatory rate of compensation for access to controlled-access highway right-of-way, and method of valuation of in-kind compensation in accordance with Section 54-16-112 of the Tennessee Code:
Minimum Underlying Urban/Suburban/Rural Rates
| Type of Right-of-Way | Annual Per Mile Rate |
| Urban | $1,500 per 1 1/4 inch innerduct (or equivalent) |
| Suburban | $1,000 per 1 1/4 inch innerduct (or equivalent) |
| Rural | $500 per 1 1/4 inch innerduct (or equivalent) |
Minimum Underlying Clear Zone Rate
| Type of Right-of-Way | Annual Per Mile Surcharge |
| All Areas | $4,000, per trench |
The Advisory Board hereby adopts the following rates, developed from the above underlying rates, plus a 3% inflation factor for the annual remittance option, or for the up-front remittance options, based on a 5% rate of discount.
Up-front verses Annual Remittance Options Per 1 1/4 inch innerduct (or equivalent), per mile
| Type of Right-of-Way | Annual | Up-front for 10 year term | Up-front for 20 year term | Up-front for 30 year term | Up-front for 40 year term |
| Urban | $1,500 + 3% inflation factor compounded (starting yr. two) | $12,162 | $19,628 | $24,212 | $27,026 |
| Suburban | $1,000 + 3% inflation factor compounded (starting yr. two) | $8,108 | $13,085 | $16,141 | $18,017 |
| Rural | $500 + 3% inflation factor compounded (starting yr. two) | $4,054 | $6,543 | $8,071 | $9,009 |
| Clear Zone (per trench) | $4,000 + 3% inflation factor compounded (starting yr. two) | $32,431 | $52,341 | $64,564 | $72,068 |
The Advisory Board hereby adopts an annual increase of the per mile rates listed above by the actual percentage rate of inflation as measured by the Consumer Price Index (CPI). This factor will be applied to all contracts seeking access to the controlled-access highway right-of-way after 2002, and every year thereafter, until the Advisory Board establishes a new rate of compensation.
The Advisory Board hereby adopts the incremental cost valuation methodology, as described in the Summary Report submitted by the Department of Transportation, dated November 30, 2001, for the valuation of in-kind compensation.
This Rate Sheet is hereby adopted, in its entirety, by majority vote of the Advisory Board members present and entitled to vote.
______________________________________
Justin Wilson, Chairman of the Advisory Board Dated: January 7, 2002
Tenn. Comp. R. & Regs. 1680-06-01-.09
Authority: T.C.A. § 54-16-112.