Key: language to be deleted. . . .new language
CHAPTER 123-S.F.No. 442
An act relating to utilities; modifying provisions relating to
municipal utilities, cooperative electric
cooperatives, and natural gas pipelines; regulating
use of public rights-of-way by telecommunications
carriers; creating task force; requiring rulemaking;
amending Minnesota Statutes 1996, sections 237.04;
237.16, subdivision 1; and 237.74, subdivision 5;
proposing coding for new law in Minnesota Statutes,
chapters 237; and 238; repealing Minnesota Statutes
1996, section 237.163, subdivision 5.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1996, section 237.04, is
amended to read:
237.04 [WIRES CROSSING OR PARALLELING UTILITY LINES;
RULES.]
(a) The department shall determine and promulgate
reasonable rules covering the maintenance and operation, also
the nature, location, and character of the construction to be
used, where telephone, telegraph, electric light, power, or
other electric wires of any kind, or any natural gas pipelines,
cross, or more or less parallel the lines of any railroad,
interurban railway, or any other public utility similar public
service corporation; and, to this end, shall formulate and from
time to time, issue general rules covering each class of
construction, maintenance, and operation of such electric wire
or natural gas pipeline crossing, or paralleling, under the
various conditions existing; and the department, upon the
complaint of any person, railroad, interurban railway, municipal
utility, cooperative electric association, or other public
utility claiming to be injuriously affected or subjected to
hazard by any such crossing or paralleling lines constructed or
about to be constructed, shall, after a hearing, make such order
and prescribe such terms and conditions for the construction,
maintenance, and operation of the lines in question as may be
just and reasonable.
(b) The department may, upon request of any municipal
utility, electric cooperative association, or public utility,
determine the just and reasonable charge which a railroad, or
owner of an abandoned railroad right-of-way, can prescribe for a
new or existing crossing of a railroad right-of-way by an
electric or gas line, based on the diminution in value caused by
the crossing of the right-of-way by the electric or gas line.
This section shall not be construed to eliminate the right of a
public utility, municipal utility, or electric cooperative
association to have any of the foregoing issues determined
pursuant to an eminent domain proceeding commenced under chapter
117. Unless the railroad, or owner of an abandoned railroad
right-of-way, asserts in writing that the proposed crossing is a
serious threat to the safe operations of the railroad or to the
current use of the railroad right-of-way, a crossing can be
constructed following filing of the requested action with the
department, pending review of the requested action by the
department.
The department shall assess the cost of reviewing the
requested action, and of determining a just and reasonable
charge, equally among the parties.
Sec. 2. Minnesota Statutes 1996, section 237.16,
subdivision 1, is amended to read:
Subdivision 1. [NEW SERVICE, CERTIFICATE OF AUTHORITY.]
(a) For the purpose of bringing about fair and reasonable
competition for local exchange telephone services, the
commission has the exclusive authority, subject to the authority
of a local government unit under sections 237.162 and 237.163,
to:
(1) authorize any person to construct telephone lines or
exchanges or to otherwise furnish local service to subscribers
in any municipality of this state, and to prescribe the terms
and conditions upon which construction or service delivery may
be carried on; and
(2) establish terms and conditions for the entry of
telephone service providers so as to protect consumers from
monopolistic practices and preserve the state's commitment to
universal service.
(b) No person shall provide telephone service in Minnesota
without first obtaining a determination that the person
possesses the technical, managerial, and financial resources to
provide the proposed telephone services and a certificate of
authority from the commission under terms and conditions the
commission finds to be consistent with fair and reasonable
competition, universal service, the provision of affordable
telephone service at a quality consistent with commission rules,
and the commission's rules.
(c) The commission shall make a determination on an
application for a certificate within 120 days of the filing of
the application.
(d) The governing body of any municipality or town shall
have the same powers of regulation which it now possesses with
reference to the location of poles, wires, and other equipment
or facilities on, below, or above the streets, alleys, or other
public grounds so as to prevent any interference with the safe
and convenient use of streets, alleys, and other public grounds
by the public.
(e) A telephone company or telecommunications carrier shall
provide for repair or restoration of streets, alleys, and other
public areas to their original condition if necessitated by the
installation or operation of telephone or telecommunications
carrier facilities.
Sec. 3. [237.162] [PUBLIC RIGHTS-OF-WAY; DEFINITIONS.]
Subdivision 1. [GENERALLY.] The terms used in sections
237.162 and 237.163 have the meanings given to them in this
section.
Subd. 2. [LOCAL GOVERNMENT UNIT.] "Local government unit"
means a county, home rule charter or statutory city, or town.
Subd. 3. [PUBLIC RIGHT-OF-WAY.] "Public right-of-way"
means the area on, below, or above a public roadway, highway,
street, cartway, bicycle lane, and public sidewalk in which the
local government unit has an interest, including other dedicated
rights-of-way for travel purposes and utility easements of local
government units.
A public right-of-way does not include the airwaves above a
public right-of-way with regard to cellular or other nonwire
telecommunications or broadcast service.
Subd. 4. [TELECOMMUNICATIONS RIGHT-OF-WAY USER.]
"Telecommunications right-of-way user" means a person owning or
controlling a facility in the public right-of-way, or seeking to
own or control a facility in the public right-of-way, that is
used or is intended to be used for transporting
telecommunications or other voice or data information. A cable
communication system defined and regulated under chapter 238,
and telecommunications activities related to providing natural
gas or electric energy services whether provided by a public
utility as defined in section 216B.02, a municipality, a
municipal gas or power agency organized under chapter 453 or
453A, or a cooperative electric association organized under
chapter 308A, are not telecommunications right-of-way users for
the purposes of this section and section 237.163.
Subd. 5. [EXCAVATE.] "Excavate" means to dig into or in
any way remove, physically disturb, or penetrate a part of a
public right-of-way.
Subd. 6. [OBSTRUCT.] "Obstruct" means to place a tangible
object in a public right-of-way so as to hinder free and open
passage over that or any part of the right-of-way.
Subd. 7. [RIGHT-OF-WAY PERMIT.] "Right-of-way permit"
means a permit to perform work in a public right-of-way, whether
to excavate or obstruct the right-of-way.
Subd. 8. [MANAGE THE PUBLIC RIGHT-OF-WAY.] "Manage the
public right-of-way" means the authority of a local government
unit to do any or all of the following:
(1) require registration;
(2) require construction performance bonds and insurance
coverage;
(3) establish installation and construction standards;
(4) establish and define location and relocation
requirements for equipment and facilities;
(5) establish coordination and timing requirements;
(6) require telecommunications right-of-way users to
submit, for right-of-way projects commenced after the effective
date of this section, whether initiated by a local government
unit or any telecommunications right-of-way user, project data
reasonably necessary to allow the local government unit to
develop a right-of-way mapping system, such as a geographical
information mapping system;
(7) require telecommunication right-of-way users to submit,
upon request of a local government unit, existing data on the
location of the user's facilities occupying the public
right-of-way within the local government unit. The data may be
submitted in the form maintained by the user and in a reasonable
time after receipt of the request based on the amount of data
requested;
(8) establish right-of-way permitting requirements for
street excavation and obstruction;
(9) establish removal requirements for abandoned equipment
or facilities, if required in conjunction with other
right-of-way repair, excavation, or construction; and
(10) impose reasonable penalties for unreasonable delays in
construction.
Subd. 9. [MANAGEMENT COSTS OR RIGHTS-OF-WAY MANAGEMENT
COSTS.] "Management costs" or "rights-of-way management costs"
means the actual costs a local government unit incurs in
managing its public rights-of-way, and includes such costs, if
incurred, as those associated with registering applicants;
issuing, processing, and verifying right-of-way permit
applications; inspecting job sites and restoration projects;
maintaining, supporting, protecting, or moving user equipment
during public right-of-way work; determining the adequacy of
right-of-way restoration; restoring work inadequately performed
after providing notice and the opportunity to correct the work;
and revoking right-of-way permits. Management costs do not
include payment by a telecommunications right-of-way user for
the use of the public right-of-way, the fees and cost of
litigation relating to the interpretation of this section or
section 237.163 or any ordinance enacted under those sections,
or the local unit of government's fees and costs related to
appeals taken pursuant to section 4, subdivision 5.
Sec. 4. [237.163] [USE AND REGULATION OF PUBLIC
RIGHTS-OF-WAY.]
Subdivision 1. [LEGISLATIVE FINDING.] The legislature
finds, and establishes the principle that, it is in the state's
interest that the use and regulation of public rights-of-way be
carried on in a fair, efficient, competitively neutral, and
substantially uniform manner, while recognizing such regulation
must reflect the distinct engineering, construction, operation,
maintenance and public and worker safety requirements, and
standards applicable to various users of public rights-of-way.
Because of the potential for installation by telecommunication
companies of multiple and competing facilities within the public
rights-of-way, the legislature finds it is necessary to enact
the provisions of sections 237.162 and 237.163 to specifically
authorize local government units to regulate the use of public
rights-of-way by telecommunications right-of-way users.
Subd. 2. [GENERALLY.] (a) Subject to this section, a
telecommunications right-of-way user authorized to do business
under the laws of this state or by license of the Federal
Communications Commission may construct, maintain, and operate
conduit, cable, switches, and related appurtenances and
facilities along, across, upon, above, and under any public
right-of-way.
(b) Subject to this section, a local government unit has
the authority to manage its public rights-of-way and to recover
its rights-of-way management costs. The authority defined in
this section may be exercised at the option of the local
government unit. The exercise of this authority is not mandated
under this section. A local government unit may, by ordinance:
(1) require a telecommunications right-of-way user seeking
to excavate or obstruct a public right-of-way for the purpose of
providing telecommunications services to obtain a right-of-way
permit to do so and to impose permit conditions consistent with
the local government unit's management of the right-of-way;
(2) require a telecommunications right-of-way user using,
occupying, or seeking to use or occupy a public right-of-way for
the purpose of providing telecommunications services to register
with the local government unit by providing the local government
unit with the following information:
(i) the applicant's name, gopher state one-call
registration number under section 216D.03, address, and
telephone and facsimile numbers;
(ii) the name, address, and telephone and facsimile numbers
of the applicant's local representative;
(iii) proof of adequate insurance; and
(iv) other information deemed reasonably necessary by the
local government unit for the efficient administration of the
public right-of-way; and
(3) require telecommunications right-of-way users to submit
to the local government unit plans for construction and major
maintenance that provide reasonable notice to the local
government unit of projects that the telecommunications
right-of-way user expects to undertake that may require
excavation and obstruction of public rights-of-way.
(c) A local government unit may also require a
telecommunications right-of-way user that is registered with the
local government unit pursuant to paragraph (b), clause (2), to
periodically update the information in its registration
application.
Subd. 3. [RESTORATION.] (a) A telecommunications
right-of-way user, after an excavation of a public right-of-way,
shall provide for restoration of the right-of-way and
surrounding areas, including the pavement and its foundation, in
the same condition that existed before the excavation. Local
government units that choose to perform their own surface
restoration required as a result of the excavation may require
telecommunications right-of-way users to reimburse the
reasonable costs of that surface restoration. Restoration of
the public right-of-way must be completed within the dates
specified in the right-of-way permit, unless the permittee
obtains a waiver or a new or amended right-of-way permit.
(b) If a telecommunications right-of-way user elects not to
restore the public right-of-way, a local government unit may
impose a degradation fee in lieu of restoration to recover costs
associated with a decrease in the useful life of the public
right-of-way caused by the excavation of the right-of-way by a
telecommunications right-of-way user.
(c) A telecommunications right-of-way user that disturbs
uncultivated sod in the excavation or obstruction of a public
right-of-way shall plant grasses that are native to Minnesota
and, wherever practicable, that are of the local eco-type, as
part of the restoration required under this subdivision, unless
the owner of the real property over which the public
right-of-way traverses objects. In restoring the right-of-way,
the telecommunications right-of-way user shall consult with the
department of natural resources regarding the species of native
grasses that conform to the requirements of this paragraph.
Subd. 4. [PERMIT DENIAL OR REVOCATION.] (a) A local
government unit may deny any application for a right-of-way
permit if the telecommunications right-of-way user does not
comply with a provision of this section.
(b) A local government unit may deny an application for a
right-of-way permit if the local government unit determines that
the denial is necessary to protect the health, safety, and
welfare or when necessary to protect the public right-of-way and
its current use.
(c) A local government unit may revoke a right-of-way
permit granted to a telecommunications right-of-way user, with
or without fee refund, in the event of a substantial breach of
the terms and conditions of statute, ordinance, rule, or
regulation or any material condition of the permit. A
substantial breach by a permittee includes, but is not limited
to, the following:
(1) a material violation of a provision of the right-of-way
permit;
(2) an evasion or attempt to evade any material provision
of the right-of-way permit, or the perpetration or attempt to
perpetrate any fraud or deceit upon the local government unit or
its citizens;
(3) a material misrepresentation of fact in the
right-of-way permit application;
(4) a failure to complete work in a timely manner, unless a
permit extension is obtained or unless the failure to complete
work is due to reasons beyond the permittee's control; and
(5) a failure to correct, in a timely manner, work that
does not conform to applicable standards, conditions, or codes,
upon inspection and notification by the local government unit of
the faulty condition.
(d) Subject to this subdivision, a local government unit
may not deny an application for a right-of-way permit for
failure to include a project in a plan submitted to the local
government unit under subdivision 2, paragraph (b), clause (3),
when the telecommunications right-of-way user has used
commercially reasonable efforts to anticipate and plan for the
project.
(e) 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.
Subd. 5. [APPEAL.] (a) A telecommunications right-of-way
user that: (1) has been denied registration; (2) has been
denied a right-of-way permit; (3) has had its right-of-way
permit revoked; or (4) believes that the fees imposed on the
user by the local government unit do not conform to the
requirements of subdivision 6, may have the denial, revocation,
or fee imposition reviewed, upon written request, by the
governing body of the local government unit. The governing body
of the local government unit shall act on a timely written
request at its next regularly scheduled meeting. A decision by
the governing body affirming the denial, revocation, or fee
imposition must be in writing and supported by written findings
establishing the reasonableness of the decision.
(b) Upon affirmation by the governing body of the denial,
revocation, or fee imposition, the telecommunications
right-of-way user shall have the right to have the matter
resolved by binding arbitration. Binding arbitration must be
before an arbitrator agreed to by both the local government unit
and the telecommunications right-of-way user. If the parties
cannot agree on an arbitrator, the matter must be resolved by a
three-person arbitration panel made up of one arbitrator
selected by the local government unit, one arbitrator selected
by the telecommunications right-of-way user and one person
selected by the other two arbitrators. The costs and fees of a
single arbitrator shall be borne equally by the local government
unit and the telecommunications right-of-way user.
In the event there is a third arbitrator, each party shall
bear the expense of its own arbitrator and shall jointly and
equally bear with the other party the expense of the third
arbitrator and of the arbitration.
Each party to the arbitration shall pay its own costs,
disbursements, and attorney fees.
Subd. 6. [FEES.] (a) A local government unit may recover
its right-of-way management costs by imposing a fee for
registration, a fee for each right-of-way permit, or, when
appropriate, a fee applicable to a particular telecommunications
right-of-way user when that user causes the local government
unit to incur costs as a result of actions or inactions of that
user. A local government unit may not recover from a
telecommunications right-of-way user costs caused by another
entity's activity in the right-of-way.
(b) Fees, or other right-of-way obligations, imposed by a
local government unit on telecommunications right-of-way users
under this section must be:
(1) based on the actual costs incurred by the local
government unit in managing the public right-of-way;
(2) based on an allocation among all users of the public
right-of-way, including the local government unit itself, which
shall reflect the proportionate costs imposed on the local
government unit by each of the various types of uses of the
public rights-of-way;
(3) imposed on a competitively neutral basis; and
(4) imposed in a manner so that above-ground uses of public
rights-of-way do not bear costs incurred by the local government
unit to regulate underground uses of public rights-of-way.
(c) The rights, duties, and obligations regarding the use
of the public right-of-way imposed under this section must be
applied to all users of the public right-of-way, including the
local government unit while recognizing regulation must reflect
the distinct engineering, construction, operation, maintenance
and public and worker safety requirements, and standards
applicable to various users of the public rights-of-way. For
users subject to the franchising authority of a local government
unit, to the extent those rights, duties, and obligations are
addressed in the terms of an applicable franchise agreement, the
terms of the franchise shall prevail over any conflicting
provision in an ordinance.
Subd. 7. [ADDITIONAL RIGHTS-OF-WAY PROVISIONS.] (a) In
managing the public rights-of-way and in imposing fees under
this section, no local government unit may:
(1) unlawfully discriminate among telecommunications
right-of-way users;
(2) grant a preference to any telecommunications
right-of-way user;
(3) create or erect any unreasonable requirement for entry
to the public rights-of-way by telecommunications right-of-way
users; or
(4) require a telecommunications right-of-way user to
obtain a franchise or pay for the use of the right-of-way.
(b) A telecommunications right-of-way user need not apply
for or obtain right-of-way permits for facilities that are
located in public rights-of-way on the effective date of this
section for which the user has obtained the required consent of
the local government unit, or that are otherwise lawfully
occupying the public right-of-way. However, the
telecommunications right-of-way user may be required to register
and to obtain a right-of-way permit for an excavation or
obstruction of existing facilities within the public
right-of-way after the effective date of this section.
(c) Data and documents exchanged between a local government
unit and a telecommunications right-of-way user are subject to
the terms of chapter 13. A local government unit not complying
with this paragraph is subject to the penalties set forth in
section 13.08.
(d) A local government unit may not collect a fee imposed
under this section through the provision of in-kind services by
a telecommunications right-of-way user, nor may a local
government unit require the provision of in-kind services as a
condition of consent to use the local government unit's public
right-of-way.
Subd. 8. [UNIFORM STATEWIDE STANDARDS.] (a) To ensure the
safe and convenient use of public rights-of-way in the state,
the public utilities commission shall develop and adopt by March
1, 1998, statewide construction standards for the purposes of
achieving substantial statewide uniformity in construction
standards where appropriate, providing competitive neutrality
among telecommunications right-of-way users, and permitting
efficient use of technology. The standards shall govern:
(1) the terms and conditions of right-of-way construction,
excavation, maintenance, and repair; and
(2) the terms and conditions under which telecommunications
facilities and equipment are placed in the public right-of-way.
(b) The public utilities commission is authorized to
review, upon complaint by an aggrieved telecommunications
right-of-way user, a decision or regulation by a local
government unit that is alleged to violate a statewide standard.
(c) A local unit of government may not adopt an ordinance
or other regulation that conflicts with a standard adopted by
the commission for the purposes described in paragraph (a).
Sec. 5. Minnesota Statutes 1996, section 237.74,
subdivision 5, is amended to read:
Subd. 5. [EXTENSION OF FACILITIES.] A telecommunications
carrier may extend its facilities into or through a statutory or
home rule charter city or town of this state for furnishing its
services, subject to the regulation of the governing body of the
city or town relative to the location of poles and wires and the
preservation of the safe and convenient use of streets and
alleys by the public provisions of sections 237.162 and
237.163. Nothing in this subdivision shall be construed to
allow or prohibit facilities bypass of the local exchange
telephone company, nor shall it be construed to prohibit the
commission from issuing orders concerning facilities bypass of
the local exchange telephone company.
Sec. 6. [237.79] [TELEPHONE COMPANY PROVIDING CABLE
SERVICE.]
A telephone company that provides cable television services
shall, with respect to provisioning of those services in
Minnesota, be subject to the same franchise requirements,
procedures, and fees, and public, educational, and government
access requirements as a cable communication company under
chapter 238.
Sec. 7. [237.81] [SCOPE.]
To the extent they regulate telecommunications right-of-way
users, sections 1 to 5 supersede sections 222.37, 300.03, and
300.04, and any ordinance, regulation, or rule to the contrary.
Sec. 8. [238.086] [FRANCHISE HOLDER EXEMPTION.]
If there is a conflict in language between the franchise of
a person holding a franchise agreement with a local unit of
government and an ordinance regulating use of public
rights-of-way, the terms of the franchise shall prevail.
Sec. 9. [ADVISORY TASK FORCE; UNIFORM STATEWIDE
STANDARDS.]
The public utilities commission shall convene a task force
consisting of engineering and other experts representing, in
equal proportions: (1) local government units; and (2) affected
utilities and other users of the public rights-of-way, to
establish recommendations to the commission regarding the
uniform statewide standards required under section 4,
subdivision 8. In addition to those general standards, the
advisory task force shall provide recommendations to the
commission regarding: the calculation of degradation costs; the
establishment of right-of-way mapping systems; the establishment
of high-density corridors within certain rights-of-way; the
indemnification of local government units by right-of-way users
and other liability conditions; and the recommended terms of a
model ordinance or ordinances regulating use of public
rights-of-way under the jurisdiction of local government units.
The model ordinance or ordinances is advisory, and is not
binding on local government units. The advisory task force
shall complete its work and provide its recommendations to the
commission by November 1, 1997. The public utilities commission
shall incorporate the recommendations of the advisory task force
in the rules developed and adopted by the commission under
section 4, subdivision 8.
Sec. 10. [HIGH-DENSITY CORRIDORS; LIMITATION.]
A local unit of government may not establish a high-density
corridor within its right-of-way for right-of-way users by
ordinance or otherwise until the public utilities commission
adopts uniform statewide standards under Minnesota Statutes,
section 237.163, subdivision 8.
Sec. 11. [REPEALER.]
Section 4, subdivision 5, is repealed, effective June 30,
1999.
Sec. 12. [EFFECTIVE DATE.]
Section 1 is effective August 1, 1998.
Sections 2 to 10 are effective the day following final
enactment, except that:
(1) section 4, subdivision 3, paragraph (b), is effective
upon the earlier of March 1, 1998, or the adoption by the public
utilities commission of the rules required under section 4,
subdivision 8; and
(2) section 3, subdivision 8, clause (3), is effective upon
the earlier of March 1, 1998, or the adoption of the rules
required under section 4, subdivision 8, but local government
units may exercise the authority that existed before November 1,
1996, with regard to the powers described in that clause, until
those rules are adopted.
Presented to the governor May 8, 1997
Signed by the governor May 9, 1997, 8:00 a.m.
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