STATE OF MINNESOTA
SENATE
JOBS, ENERGY AND COMMUNITY DEVELOPMENT COMMITTEE
April 3, 1997
Tape 1, side 2, Counter 427
Chair (Kelley?): Senator Novak, SF 442.
Novak: Mr. Chairman, members of the committee and the various people following this bill.
This is the telephone right of way bill that lots of people have been working on for many, many
months and what I’d like to do is a amendment DE5 which is a delete everything amendment
that will reflect the work of a lot of people and put the bill in the shape that we’d like to discuss
it.
Chair: Senator Novak is moving the DE5 amendment, delete everything to get the bill into
shape [ ]. All those in favor say “aye.” Etc. Motion prevails. Senator Novak.
Novak: Then what I’d like to do, Mr. Chairman, is just briefly give a summary explanation,
have the council go through the bill, see how people feel about that situation. If we run out of
time we’ll take it up first thing in the morning, but if we can vote on it we’d like to only because
I think it still might have to go to another committee. Basically, for those following the bill, and
there’s been a lot of interaction on this bill with the cities of the state, a variety of utilities that
are affected all representing constituents and customers. This represents a consensus on a
number of points but possibly not quite all of them. And this amendment sort of picks up the
action as it came out the house regulated utilities committee, where at that point there was an
agreement. Then it went to a second house committee and an amendment was put on that
left some disagreement. Of the four things that people disagreed on at that point two or three
have been agreed to and they’re also now in this amendment and there’s a remaining issue or
two that still may be necessary to be discussed. With sort of plain English explanation, on the
trail its gone on, I’d like to have council briefly go through the bill and explain the details and
then we’ll take a, begin testimony if they’re are those that like to testify.
Chair: Mr. Fuller.
Fuller: Mr. Chairman, members, well the bill is almost all detail, so I will give you some
highlights. It’s all very precise language. I think if you turn to page 5 of the amendment on
line 34 you see the legislative finding. And it runs on to page 6, that first sentence: “The
legislature finds and establishes a principle that it is in the states interest that the use and
regulation of public rights of way be carried on in a very efficient and competitively neutral and
substantially uniform manner while recognizing such regulation must reflect the distinct
engineering, construction, operation, maintenance and safety requirements and standards
applicable to various users of public rights of way.” All the detail will flow from that principle
which is basically a balancing of the public’s interest in the right of way represented by a local
unit of government in an interest in having some statewide uniformity in the use of that right of
way, particularly the construction use. So we’ll go through the bill, its heavy on details.
I think we should just jump to, since time is of the essence, to the definitions. And you’ll see
“local government unit” is defined as a home rule charter, a statutory city, though there was
an amendment in the house that put in some other units, that’s not here yet. “Public right of
way” defined, you’ll notice that lines 35 and 36, it does not include, on page 3, does not
include the airways above, with respect to cellular. The key thing to keep in mind we’re
talking about telecommunication user of the right of way, you’ll see that defined in subdivision
4, cable company is excluded specifically. I think if you go on to page 5, subd. 9, if you go to
page 4, subd. 8, “managing the right of way” is an important concept, and that’s laid out, what
that means in very precise detail. Subd. 9, “management costs” one of the issues has been
that, I think that, one of the agreements is that well, the local unit of government can manage
the right of way and recover its actual cost, it should not turn into a profit center sot that’s
defined in subd. 9. You’ll notice on page 5, lines 29-31 management costs do not include
payment by a telecommunications right of way user for the use of the public right of way, so
there’s not going to be a fee for that, but there can be charges for the cost that are incurred by
a local unit of government. And then, section 4 is the operative section using those definitions
that were laid out in section 3.
Telephone companies are, telecommunication right of way users are required to submit plans,
get permits, register with the local unit of government, restore the right of way to the condition
that it was in before. There’s an ability on the part of the local unit of government to deny
permits and revoke um, but I think if you turn to page 9, lines 9-11, there is this concept of
nondiscrimination and open access to the right of way. Page 9, line 9, in no event may a local
government unit unreasonably withhold approval of an application for a right of way permit or
unreasonably revoke a permit. So they can, the bill sets up a structure where there is an
ability to regulate that use and the required activities of the user. But they cannot just say “no”
you cannot use the right of way unreasonably. The appeal process that you see on page 9,
starting on subd. 5, is a temporary one, its sunsets. We want to see how it works. It provides
for discussions with the local unit of government. If that doesn’t resolve the dispute an
arbitration process. We turn to page 10, subd. 6, the issue of fees is laid out. You’ll notice on
line 8-11, again a local government unit may not recoup from a telecommunication right of
way user cost, if any, that are unrelated to the telecommunication’s right of way users use of
the local government’s right of way. So again, that’s repeated several times, that theme.
Pariseau: Mr. Chairman, may I ask of council why its specially telecommunications and not
other utilities like electric? Why all these provisions are just telephone?
Chair: Senator Pariseau, I understand that Senator Novak is going to have, perhaps a couple
of witnesses, maybe we could direct that to those witnesses.
Pariseau: Fine.
Fuller: Then you’ll notice on subd. 8, is another key point on page 11 that the PUC is charged
with the duty to develop and adopt by August 1, 1998, this is on page 11, lines 30-35: The
PUC shall develop and adopt by August 1, 1998, statewide construction standards governing
the use of the right of way, those standards have to conform with the principle that we
discussed at the start of the discussion. You’ll notice on page 12, lines 7-10, the issue of local
preemption or commission preemption is raised. “The Commission may not preempt a local
government unit with regard to the regulation of a public right of way, except for violation of
the principle.” And I assume in the underlying rules that conform to that principle. Some
issues are placed under the, are delegated or given to an advisory task force. Ones that
couldn’t be resolved between the parties up to date. The have to report back on January 15,
1998, and the PUC must follow those recommendations as they adopt their rules. You’ll
notice on page 13, lines 2-6, those issues, those specific ones that are charged to the
advisory task force are listed. So we have a situation where a lot of these sections are
effective immediately. Some issues are charged to the task force and the PUC is going to
adopt some rules. So this is a process that’s initiated. I think, in the interest of time those are
the highlights. There’s a coordination between the, a balance is being sought to be struck
between statewide uniformity and the ability of the local unit of government to regulate their
right of ways. I think following the principle that we discussed originally.
Chair: Senator Novak.
Novak: I think that councils did a good job of outlining the major issues, which have been
long-standing that we’ve been attempting to resolve through numerous meetings of groupings
of people that have basically revolved around the League of Cities, other related municipal
interests, and governmental jurisdiction interests, telecommunication companies and other
related companies. And I think, what I’d like to try just on the chance that it might be
successful, because this bill, I believe in fairness, if it passes, should be referred to the local
government committee. Is to ask the League of Cities, Minnesota Telephone Association,
other telecommunications companies and other interested persons if they can quickly
designate someone to come up here in a group. What might be most helpful to the committee
is to have them mention briefly and succinctly what parts of the package they might feel still
needs some work, because I think its a fair statement that there’s pretty genuine consensus
on about 90-95% of all these we’ve talked about and its embodied now in this bill, but as of
late last night there was still discussion around a point or two that I’m not sure got resolved by
this amendment. I haven’t had an opportunity to visit with everybody this morning. And if it is
limited, focused in that area it might be possible for the committee to pass this on to local
government committee with the agreement that we continue to work on it. If there isn’t, we’ll
bring it up first thing tomorrow, at tomorrow’s meeting.
Chair: Mr. Miller who’s the designated hitter for
Novak: Maybe we could start by having the cities
Chair: Mr. Miller welcome to the committee
Novak: I’m going to ask you to focus your comments, not all the things we agree on but on
those things that you might still consider to be open issues, or unresolved and then we’d ask
the telephone association and anyone who feels their adversely affected by this to just get
those points on the table so that the committee knows what’s still not agreed to.
Chair: Mr. Miller, perhaps in addition to doing what Senator Novak asked, you could address
Senator Pariseau’s question as well.
Miller: Mr. Chairman, members of the committee, my name is Jim Miller and I’m the executive
director of the League of Minnesota Cities. I want to thank you for the opportunity to be here
today and I’d also like to take this opportunity at the outset to thank Senator Novak for his
leadership. This is obviously very complex and difficult issue and one that even having been
intimately involved in I think is very hard to understand and never the less we would not, I’m
sure, be here today if not for his involvement and leadership and I do want to thank him for
that. The bill that is, well let me begin by addressing Senator Pariseau’s question. I think the
general answer as to why this is specific to telecommunications provides and not to other
utilities is probably twofold: One for cities and for utilities, the law significantly changed the
environment, significantly changed when the federal government deregulated the
telecommunications industry. So the historical rules of the game that had been in place for
cities and utilities is dramatically changed in 1996 and new rules needed to be adopted and
promulgated which is the intent here. The other part of the answer though is that in large
measure the other utilities are already regulated by franchise agreements [and that is the
authority that] is currently not allowed for telephone utilities and so this is an attempt to
provide the kind of controls that are necessary for regulating the use of the right of way with
respect to that one particular utility.
Concerning this particular bill there are, as the Chairman has indicated, there is agreement on
a substantial number of major provisions and I will not go through those. There are however,
a couple of major unresolved issues that have been I’m optimistic can be resolved, either in a
later committee or in a later part of this process. One has to do with the question of indemnity
and insurance. I think that this is more a question of each party trying to understand exactly
what the other is concerned about more than any real substantive difference. So I think it
may be a semantic difference and not a substantive difference. But never the less that is an
issue, that, as of this moment, is unresolved in our mind. Perhaps the most, and that would
apply to insurance requirements as well. So there are some technical parts of the bill, in that
area that I think need clarification. There is one other very substantive issue that, to my mind,
is absolutely crucial to be resolved if it, if this bill is to be workable. And that is what happens
during the interim period between either now and 1998 if, the bill that is currently before you
would say that the advisory committee that is contemplated by this legislation must report its
findings by August of 1998. In effect that means that there will be two construction seasons
this one in 97 and 1998, where the ability of cities to control the use of the right of way, the
construction standards, the restoration standards is ambiguous and that needs somehow to
have some kind of resolution.
Chair: Mr. Miller, on that point, Mr. Fuller points out to me that the bill says January 15th of 98
which gets us into
Miller: Mr. Chairman. I received a copy of the bill this morning, pervious draft did have
August 1. With respect to that date and this is a question that is a concern I don’t know if it is
doable. If the process that needs to be followed and we would need to have some assurance
that in fact that they could do that. That would be a favorable amendment from our
perspective. I would also ask Mr. Franzen, who is here with me to represent the cities, if there
are any issues that I have overlooked in my
Chair: Mr. Franzen, identify yourself for the record please.
Franzen: Mr. Chairman, members of the committee, my name is Doug Franzen an attorney
representing Minnesota, League of Minnesota Cities. I think Mr. Miller outlined the concerns
we believe are open. There’s one further concern. It started out as a very large issue []
should there be a penalty for disruption costs. Those costs occasioned by utility workers. We
believe that’s narrowed down to a very specific and small concern about whether there should
be penalties permitted for unreasonable delays in completing the jobs. We understand that
because of some of the issues and discussions that have gone on that this is probably an
issue better put forth to the advisory task force in the future rather than addressed to this
point. We did want to raise that. I believe with the few of the absence of, a few “t”s crossed
and “I”s dotted those are the major substantive issues that we perceive to still be open.
Miller? As I think, Mr. Chairman, as a result of a series of meetings yesterday which led to
this meeting, including that date change, I was very interested, if at all possible to narrowing
down to one construction season the problems that remain. So that we might all focus our
energy and see what we can do to negotiate out the [ ] practical problems in that area.
Chair: Are there any questions for Mr. Miller or Mr. Franzen? Gentlemen, thank you very
much. Senator Novak do you want to do the Minnesota Telephone Association next? Mr.
Knickerbocker you. Mr. Knickerbocker.
Knickerbocker: Mr. Chairmen, members. My name is Jerry Knickerbocker [public] affairs
director for the Minnesota Telephone Association. Getting to the question that was asked that
is to respond to differences that might be still outstanding, put that in front of us. The bill is, I
think for the telecommunication, telephone industry concern revolved around the definition
and what installation and construction standards might be. That sort of drives everything else
because if certain things are permitted, cities [can] do, in terms of promulgating their
ordinance that has an impact on costs. And from our point of view the statewide group that
would meet and discuss these things, and we are talking about statewide policy [ ] and its in
the best interest to have uniformity in standards. Those issues should be addressed by this
policy group and has been mentioned there are other issues like the high density corridor,
liability, indemnification, degradation, the role of the PUC in terms of its relationship with the
telecommunication providers and the new relationship with the units of government that they
never had before. The mapping requirements so that there can be compatibility. I think there
are other issues because of the fact that we’re passing some policy here that affects all users
of the right of way, there are other implications of the units of government and other utilities as
to their relationships of the right of way. And those issues need to be addressed in a neutral
forum, big picture, statewide approach. And this committee’s permission sets us to do that.
By moving the date down to January, we’re left with the present circumstance.
Now the municipalities have had the ability since 1915 to manage the right of way, location
[pole to ] wire. And this construction season is no different then last or the other years, back to
1915. They have all the same rights they’ve always previously had. Nothing is taken away in
terms of their ability to manage the right of way during this construction season. The
installation and construction standards are very important. That’s as I said if those are not
drafted so that certain things are specifically included and certain things are specifically
excluded the cities by ordinance can say, because we give them the right in this bill to
determine what their management costs are. They can say that the very things that we
disagree about like legal fees, removal bonds or other kinds of items could be included in their
definition of management costs. And they could create additional costs and circumstances for
telecommunications providers in terms of hoops to jump through with their local definition by
ordinance that we would never intended to do with the bill. So developing those standards on
a statewide basis so that everybody has input, everybody knows that they had their say, that
means the other utilities as well, gas, electric, cable, those folks that have a franchise and the
cities. It’s important that it be done on a statewide basis, in a neutral forum with statewide
input. And the object would be to [ ] statewide standards. And we think that’s the best way to
address the outstanding issues.
Chair: Ok, are there any questions for Mr. Knickerbocker? Senator Runbeck.
Runbeck: Thank you Mr. Chair. So Mr. Knickerbocker, you’re confident that the process that
set up then here with the PUC involved is gonna allow for a fair an open and impartial
determination of what management costs are?
Chair: Mr. Knickerbocker.
Knickerbocker: Mr. Chairman, Senator Runbeck, [Yes, I think that would be a neutral forum.]
Chair: Senator Novak, did you have anybody else that you thought we ought to hear from.
Novak: I think Mr. Haney(?) wants to speak. As we’re doing that maybe we could have
passed out amendment A6. That’s an amendment, I think, everyone agrees to and I like
Chair: Mr. Haney. Welcome to the Thank you Mr. Knickerbocker.
Haney: Good morning Mr. Chair, Senators. My name is [Matthew Haney] and this is Jim
Johnson, an attorney with NSP
Tape 2, side A. (hard to hear testimony of those testifying on this tape 2, side A.)
Johnson: (hard to hear testimony)…relates to actually earlier [ ] the comments by Mr.
Knickerbocker, which is on page 10 of the amendment starting at line 33, the entire intent of
this bill is to regulate telecommunications right of way users [] language in section 6(c)
imposes the obligations and duties under the section [ ] and we interpret that to include NSP
and other public utilities and we believe there should be uniformity in the regulation. As was
mentioned earlier we are regulated by franchise, but most of those franchises require us to
comply with the police power regulations of the cities including right of way [municipal]
ordinances. So, [to my] indication we’re bootstrapped into this bill by this language. And we
will be working with the other [municipal] parties to try to resolve, to come up with some
resolution on how to handle that. But it is a question we think people ought to be treated
fairly and equally with this sort of bootstrap into section 237 in a way that has not happened
before.
Chair: Questions for Mr. Johnson? Senator Runbeck.
Runbeck: Well, Mr. Chair, and um Senator Novak, since everywhere the bill talks about a
telecommunication user of the right of way. Why would this have switched and could we not
then amend it?
Chair: Senator Novak:
Novak: Mr. Chairman, Senator Runbeck, I’m not saying that this is an issue that has been
relatively [ ] under discussion by a variety of people, so that this [kinda meditating] and
thinking about it.
Runbeck: So Mr. Chair and Senator Novak
Chair: Senator Runbeck.
Runbeck: It seems like a tremendously valid point of, point of view here and so I would be
inclined to, to move to amend that to say telecommunication users on line 24.
Novak: Mr. Chairman,
Chair: Senator Novak.
Novak: What, what I, that’s a very clear possibility. What we’ve been trying to do is, you
probably know cause you [ ]. An interesting collection of people and parties have negotiated
and have been working on this and we’ve been to go step to step as we reach consensus.
And coming into the meeting this morning we had on a number of points. This is one where I
don’t believe there was consensus yet but we have knowledge that we’re going to be going to
one more full standing committee with the process being on going. Obviously we can do
whatever the committee’s comfortable doing. But we’ve been trying to keep the balance. WE
have had some new issues come in, little pieces of the overall puzzle here just in the last 24
hours so. That one is not new to me personally but it’s, I think new to a large group [ ] we
expect to act on it one way or anther [ ]
Chair: Mr. Johnson.
Johnson: Mr. Chair, Senator Runbeck. I do want to point out that we are not advocating that
[we are not looking] for a change at this point. We simply want the opportunity to meet with
the other interested parties and try to see if we can come to some resolution on that specific
issue. So we’ve not advocating [ ]
Chair: Senator Lesewski.
Lesewski: Mr. Chair, if, in regard to Senator Runbeck’s comment, if you read the subdivision
and start under letter (b) its specifically says telecommunications right of way users under this
section must be and then it lists 1, 2, and 3. So based on that, I would understand that 1, 2,
and 3 relate to only to telecommunications right of way.
Chair: Senator Runbeck.
Runbeck: We’re on line 24 which is a different section.
Chair: Senator Lesewski. I think the question would arise that that paragraph (c) says the
duties and obligations imposed under this section, not just the subd. So
Lesewski: Mr. Chair I understand, but I was looking on line 17 where they also have used the
word “all users,” and was thinking that it was the same, but you’re correct it is different.
Chair: Senator Novak moves the A6 amendment. Senator Novak, am I to understand, I think
you said earlier that all the the parties to the negotiations agree to this change?
Novak: Mr. Chairman, I believe that’s a correct statement and I’m sure someone will correct
me if I’m wrong. But basically what this has to do with is a long-standing commitment on the
part of myself, and I think a lot of other people, that were we had established cable operation
offering public access to different kinds of programming which is basically been paid for by
companies. Not only entered this arena of deregulation where phone companies and cable
companies can get into each other’s business. We want to assure the public that those
programs are going to continue to be supported. But we also want to protect one private
entity against the other in terms of trying to keep the level playing field. So what we’re saying
is that there’s an exchange, they have to pick that cost up to. And I believe that’s agreed to
by all various competing parties so. It’s in that spirit that we offer that amendment.
Chair: Any discussions or questions with respect to the A6 amendment? Senator Novak
moves the adopting of the amendment. All those in favor, etc. The motion prevails. The
amendment is adopted.
Novak: Now Mr. Chairman, there’s an amendment A4. And at that point we might want to
bring up Mr. Erickson. And I think in fairness there’s agreement on the first part of this
amendment but may be still discussion on the second part of the A4, involving this interplay
that would be going on between cable companies, phone companies and cities [and have]
franchise agreements and what the status of these things might or might not be depending on
circumstances in the market place. With that as a background, I think, as people are
reflecting on A4 we should maybe here from Mr. Erickson and then there may be a
counterpoint to that. Possibly we can resolve this if we can’t it can go onto the next standing
committee.
Chair: Mr. Erickson welcome to the committee.
Erickson: Thank you, Mr. Chairman, members of the committee. Jim Erickson, representing
the Minnesota Cable Association. We really have three concerns, one of them you’ve already
adopted. We were [supportive of the] A6 amendment. And I think that was very appropriate,
and we’re pleased you did so. Our amendment can really be divided into the two paragraphs.
We think the first paragraph is not controversial and would ask that it be adopted if there’s no
objection from anyone in the audience. The last paragraph, of our amendment, goes to the
point that we as cable providers, and other utilities in the state, pay franchise fees in certain
circumstances. We believe we should get something for that and we are caught up in [ ] the
Novak bill. This is a, really now been narrowed down to a discussion for the phone
companies and the cities, but the, all of the utilities and all of their providers kinda get caught
up in the precedent setting nature of it and the cities are now passing ordinances which affect
both telecommunications and other utilities, including cable. But we believe the issue could
be appropriately on the table about what in fact should be paid beyond the 5% franchise fee
that we do pay to cities. We lay this amendment, the second portion of it out for your
consideration and would hope that you would believe that there are, there certainly is a line
that ought to be drawn there and that’s a general policy.
Now I just talked to [ ] on behalf of the cities and I have advised him that we are more than
happy to talk about some of this stuff [ ] that may be appropriately to be paid. And I want to
tell you that this language very mirrors what the city of Mpls adopted in its ordinance, with one
exception. The, to be perfectly candid and blunt, the city of Mpls adopted a franchise [order
exemption] like the second paragraph of my amendment but it said, it exempted from the
exemption, if you will, “except disruptive costs.” They, hard to define [ ] state legislation, but
I’d be happy to talk to Mr. Franzen as we go down the road to be more explicit about what
kind of costs would it pay that are on top of the franchise fee. So I wanted to have that put
forward to the committee I hope you’d adopt paragraph, the first paragraph of the amendment
and I’d be happy to hear from Mr. Franzen about his views on how to work together on the
second paragraph, and might refine it here or in some other committee
Chair: Mr. Erickson thank you, are there questions for Mr. Erickson?
Pariseau: Mr. Chairman,
Chair: Senator Pariseau.
Pariseau: I just want some confirmation on franchise agreements. I’m assuming that are held
between electric companies and not municipals and the cities as well. Are they typically
defined very well so that the contents are not just a verbal agreement?
Mr. Erickson: (178) Mr. Chairman, Senator Pariseau. Someone from the electric industry
probably could answer that better than I. We have franchises in all cable circumstances [ ].
Chair: Senator Pariseau, council informs me that this is chapter 238 which is the cable
chapter so it wouldn’t apply to the electrical franchises.
Novak: [Without ] Mr. Chairman, if may be helpful to focus the discussions, I’ll offer the
amendment A4 and also offer to divide it after line 8.
Chair: All right, and do you want take, which portion do you want to take first?
Novak: I would take the first eight sentences first, which I think there’s agreement on, but let’s
find about it. Find out about that and then let’s discuss the second amendment. Let’s hear
from Mr. Franzen and anybody else with an objection to the first eight sentences [ ].
Chair: Mr. Franzen welcome to the committee.
Franzen: Thank you Mr. Chairman, Doug Franzen, again, League of Minnesota Cities. Mr.
Chairman, members, we do not have an objection to the first portion of the amendment. The
first portion which I believe is lines 4-8 [ ] we have agreed with Mr. Erickson for that. Mr.
Erickson correctly informed the committee we have huge difficulties with the remainder of the
amendment that’s a very large issue outside of the scope of the agreement that we’ve been
working on for months. However, we do want to acknowledge that this is, there is an issue
there, we believe it’s a valid issue and the League of Cities has committed to Mr. Erickson that
it’s something we should discuss and look at. Because we have objection to this language
and we think its bad policy as drafted, we think there is an issue there that over time we can
discuss between cities and cable operators. So specifically we would ask that the second
part of the amendment be deleted and on behalf of the League of Cities we would commit to
work with Mr. Erickson and his clients to really explore that option because there are valid
issues that are being raised.
Chair: Ok. We have before us only the first, only lines 1-8 of the amendment and then lines
15 and 16, 15-18. So, we’re treating lines 9-14 as a separate motion. Senator Higgins did
you have a question on the motion before us.
Higgins: Yes, Mr. Chair, and it’s just something that I just don’t know. Why do we talk about a
person holding the franchise agreement instead of a corporation or company or something or
another. I guess I don’t think of that as a people [].
Chair: Mr. Franzen.
Franzen: Mr. Chairman, Senator Higgins. I believe the intent is that persons would include
corporations or company or partnership or something like this. We did not draft this and that
may be illustrative that there are a number of issues here that do need further discussion. But
I believe that it was Mr. Erickson’s intent that when you’re talking about a person holding a
franchise agreement it’s not necessarily a natural person, it could be a corporation.
Higgins: So Mr. Chair, Mr. Franzen, there’s probably some legal definition of a person
meaning more that just a person.
Chair: Senator Higgins that’s (general discussion in background that her assessment is
correct.) Senator Johnson.
Johnson: Thank you, for Mr. Franzen on lines 9-14 your concern about working this language
out. There’s, Senator Novak, I think you may be going to another committee, besides, you
may be going to transportation as well so its important to move this bill out [so you can meet
those deadlines] local government. Well there’s also some question about transportation,
I’ve heard. But, not by me, but Mr. Franzen so you’re saying you would be committed
between now and those other two committees to working on this portion and um
Franzen: Mr. chair and Senator
Chair: Mr. Franzen.
Franzen: No, we believe this very large cooperative [ ] issue can be resolved between the
time we have before the next meeting in the next few days. To get where we have gotten so
far in the negotiations, and we had a series of meetings and negotiations over a period of
months to come up with the work product that’s before you. We believe the issue presented
by [ ], specifically lines 9-14 hopefully will not take that same type of effort. But certainly we
anticipate it would take more time then we could devote to it within the committee deadline.
What we would specifically commit to is probably over the period of the interim in looking at
this issue in some depth, with the League of Cities.
Chair: Ok. We have before us Senator Novak’s motion that on the A4 amendment lines 1-8
and lines 15-18 being incorporated into the bill. All those in favor of the motion please say
“aye.” etc. Motion prevails, the amendment is adopted. Senator Novak, would you like to
withdraw the second half?
Novak: I’ll withdraw the second part. What I’d like to do quickly, Mr. Chairman is call up
Jennifer Marsh from the Minnesota Association of Counties for about a minutes worth of
testimony on an amendment that Senator Dave Johnson has, that I believe has been agreed
to. [And I’d like to have that passed out.]
Chair: That amendment is being passed out. Welcome to the committee, Miss Marsh.
Marsh: (Very hard to hear testimony.) Thank you Mr. Chair, members, Senator Novak. The
Association of Minnesota Counties has [ ] this overall bill and [ ]. [ ] is one that may be easily
recognized by the [ ]. As counties, towns and cities are similarly situated in Minnesota law
and have been for years related to their authority over public rights of way. The counties
would just like to be included in this bill [ ] line 22 include the word “county“ and have, where’s
it’s county and town. However, the additional qualifying language prevents counties and
towns from actually being able to dig up and [ ] the bill and benefit or other by the bill’s [ ]
So, I’d be more than happy to entertain any questions and I’ve got the statutory cite of the
current statutory authority If you’re interested in that, but that’s basically what we’re asking for.
Chair: Senator Johnson.
D. Johnson: I would move, do I need to orally do this or has this amendment been drafted or
should I orally make the motion Mr. Chair.
Chair: I’ll just state, I understand the motion Senator Johnson. Senator Johnson moves on
line, page 3, line 22 of the DE5, delete everything amendment to, on line 22 insert after “a
“ the word “county,” and then on, after the word “city” insert “,or town.”
D. Johnson? And then delete the remainder of line 22.
Chair: Delete the remainder, delete “local government” on line 22 and the remainder of subd.
2.
Johnson?: That’s correct. As the chair said, or as Senator Novak said Mr. Chair, I don’t
believe there’s any controversy, it’s something everyone’s agreed to. More clarifying.
Chair: I don’t see anybody jumping up in protest. Any questions regarding this amendment?
Seeing none, the motion before us is Senator Johnson’s motion to amend on page 3. All
those in favor, etc. Motion prevails. Amendment is adopted. Senator Pariseau.
Pariseau: The net result of this, I need to have a clarification on the net result of adding these
governmental units. Let’s say the utility has a project that goes through all three of these
statutory entities, and so they could then pay a fee to all three of them for the same project
two miles long or so.
Johnson?: Mr. Chair, Senator Pariseau, my interpretation would be is only if they use a right
of way owned by the county or town, rather then if they go through the county or town. I
suppose that some right of way, if you were using state right of way, for example, you might
not fall into this, even if you were passing through the county. Miss Marsh, do have anything
to add to that?
Marsh: No, other than there are maintenance agreements that counties sometimes have with
cities or actually a few already have the cities take care of the jurisdiction on those rights of
ways. And where those agreements are they would still continue to [ ]. This would not
become much of an issue often, but its just something that the local government [ ].
Chair: Senator Johnson:
D. Johnson: Thank you Mr. Chair, I think my understanding of it is if there was a cable
operator, somebody laying line from point A to B, at different parts of that project there might
be different kinds of right of way they might go through, but that three different entities
wouldn’t own the same piece of right of way. So it wouldn’t be in the sense that you have a
city, a county and a township all in the same area that a utility would have to operate. But
through the course of a project you might go through a city right of way, a county right of way
and whatever, but that would be the case right now I believe to, so.
Chair: Now, Senator Novak, [ ] we acted on that amendment.
Novak: Mr. Chairman, here’s the situation. I do have a note from Senator [Flynn’s] committee
that they do not need to see the bill. But we had fully intended to have this bill, if it passed this
committee be referred to local government committee. We do have the deadline pending. I
think that there’s a parallel agreement on all of the different sides of this issue that there all
best served if this legislation passes this year. So what I’m going to say is if there’s no one
else that needs to testify I would move that SF 442, as amended, be recommended to pass
and be referred to local government committee. However, if there are people who still want to
testify or if the committee is not comfortable with that action at this time, then we would take it
up first thing tomorrow and whether that does or does not cause us problems with the local
government committee and the deadlines, I honestly do not know.
Chair: Senator Novak, there are two people who want to testify and perhaps if they testify
briefly we could, and depending on, of course, the committee’s reaction to that testimony, we
could perhaps still do this in relatively short order and we’ll just have to see. Mr. Knapp.
Welcome to the committee Mr. Knapp.
Knapp: Thank you Mr. Chair, members of the committee, Senator Novak I understand your
time crunch and I’ll try to be as brief as possible. My issue is the transportation issue that’s
found in section 1 of the bill. This is a new element of the bill that was not in the bill as
originally introduced, but has been added to this delete everything amendment. The effect of
this amendment is to give the commissioner of transportation the ability to determine what
charges a railroad imposes on a utility crossing the railroad’s right of way. Obviously, railroad
and utilities are two of the largest property owners in the state and they often have situations
where one or the other crosses each other’s right of way. They have been in the past been
able to determine this on their own without the necessity of the state of Minnesota intervening
and determining this for those parties. The effect of this amendment would allow the utility
unilaterally to go to the department of transportation and have that amount determined. And
I’d point out to the committee that first of all the ability is solely with the utility, the railroad
doesn’t have the ability to bring the issue to the department of transportation. And second of
all, the provision relates solely to the railroad property, it doesn’t relate to utility property. If
this provision is to be adopted, it seems to us it should be reciprocal. It should apply to
easements over utility property as well as easements over railroad property. I just mention
that there was one specific issue that was brought to my attention by the house author Rep.
Jennings. We have committed to work with Rep. Jennings to resolve that issue in his district
and Senator Johnson’s district. We think we’ve made substantial progress and we would
hope that either this provision could be deleted, pending that resolution. It is included in the
house bill or else it could get some attention in the transportation committee. I know the
department of transportation did have some comment on that.
Chair: Mr. Knapp, just a clarification. Council, and this is in chapter 237, and it looks to us
like the department referred to is the department of public service rather than, rather than the
department of transportation. So I just wanted to clarify that and I can understand that the
railroads would still have some concern about that but
Knapp: It was originally introduced in a separate bill [related to the department of
transportation. It’s not that clear. ]
Chair: Ok, and Mr. Knapp you in essence gave us two options. That is, we could leave this in
with a commitment from the author, which I think Senator Novak has made repeatedly to
continue to work with folks or take action on it here. And, you’re comfortable with either
course of action.
Knapp: Absolutely, in fairness we have not had an opportunity to visit with Senator Novak on
this provision.
Chair: Ok. Thank you very much.
Runbeck: Mr. Chair.
Chair: Question, Senator Runbeck.
Runbeck: Maybe someone up at the table can explain to me if its dealing with railroads and
there was no knowledge by Mr. Knapp that it’s in here, the process looks a little flawed to me.
Chair: Senator Novak.
Novak: Mr. Chairman. Senator Runbeck. I guess I’d have to accept the conclusion that
there are some things about this process that are sometimes flawed although they’re not
intentional. So I would certainly commit to Mr. Knapp to work to resolve this, this issue.
We’ve had a wide collection of people from a variety of elements of the economy and the
governmental sectors working on this for a period of weeks and months and sometimes things
happen and when we find them we try to fix um.
Chair: Senator Runbeck:
Runbeck: Mr. Chair, before we vote, Senator Novak looking at the final language, I mean, I
guess I’m going to be asking between the next committee and when this gets to the floor.
Have we really done anything here? In a way it looks to me like we may have created a huge
mountain of red tape to really not accomplish very much except maybe to nickel and dime the
telecommunications companies and so if that’s the, what what really is the net net of this it
seems like boy do we need this? So that’s what I’d like to hear [] discussed between now and
then.
Chair: Senator Novak.
Novak: Mr. Chairman, Senator Runbeck, that’s an interesting conclusion. The intent of the
bill is to resolve a variety of concerns. Some of them, admittedly theoretical, definitely
prospective. That have troubled every city in the state and every utility company in the state
about what the ground rules are going to be from this point forward as we enter admittedly a
new area of deregulation of these utilities which effects parts and pieces of almost all aspects
of our economy and from the stand point of your and my constituents and these various
corporate folks, ratepayers, is important. And so we need it and do need, I think, one state
standard in terms of what the rules are going to be to save us varieties and great numbers of
lawsuits, presumably, incurring lots of costs to those same people and others and so it strikes
me that the best way to get a resolution of this was to do the best we could do to involve all of
them in the discussion. What we often times discovered, we discovered in this process, with
this set of issues is that we don’t always know in the beginning who all the players are going
to be because, with every amendment comes a little different nuance or a little different twist
in the road and somebody else becomes affected. We try to keep up with that the best that
we can. It hasn’t been perfect but we’re getting a lot closer we think and everybody seems to
have the same feeling that they would all be collectively best served if we can resolve it this
year. [ ]
Chair: Thank you very much Mr. Knapp. Mr. Taylor.
Taylor: Hello, my name is Tom Taylor and I’m the chairman of the organization called
Minnesota Utility Labor Council and its made up of communication workers of America, gas
workers, office workers, local 12 and the [IBW]. And I know there’s language in there to talk
about public safety. We just want to make sure that as we move into this new world that the
worker safety isn’t compromised. And I know the chair, the author has made many
commitments to work this out in the next committee and that’s all we’re asking, some kind of
language in there that we won’t be compromising worker safety in the future with any of these
changes.
Chair: Mr. Taylor, I’ve been informed that on page 6 lines, line 4, there is a reference to
maintenance and safety requirements.
Taylor: Ok, thank you.
Chair: Hopefully that will address your concern. Thanks very much. Senator Johnson.
Johnson: Well, if there are no other comments, I would move the bill.
Chair. All right. Senator Novak got there ahead of you Senator Johnson. We have before us
Senator Novak’s motion that SF 442 as amended be recommended to pass and re-referred to
the local and metropolitan government committee. All those in favor, etc. Motion prevails.
Thank you very much members. Senator Novak we can adjourn.
Updated October 9, 1997