(1) Statement of
Policy.
(a) Notwithstanding any other rule or
provision of Chapter 1680-6-1 to the contrary, it shall be the policy of the
Department of Transportation to grant non-exclusive permits, on a competitively
neutral and non-discriminatory basis, allowing the longitudinal installation of
underground fiber optic cable lines and related facilities within the
rights-of-way of freeways on the state highway system and/or federal interstate
highway system, as provided in Section
54-16-112 of the Tennessee Code,
and subject to this Rule. The installation of fiber optic cable facilities and
other utilities that cross over or under freeways shall continue to be
regulated in accordance with other provisions of this Chapter.
(b) The Department of Transportation shall
receive compensation for the use of freeway rights-of-way to install fiber
optic cable facilities in accordance with the rate of compensation established
by the Advisory Board under Section
54-16-112 of the Tennessee Code.
The Department of Transportation may, at its option, accept monetary
compensation or in-kind compensation, or both. Valuation of in-kind
compensation shall be calculated in accordance with the method of valuation
adopted by the Advisory Board.
(2) Governing Law.
(a) This Rule is promulgated under the
authority of, and in compliance with, Section
54-16-112 of the Tennessee
Code.
(b) It is the intent of the
Department of Transportation that this Rule shall be construed and administered
in accordance with applicable provisions of the Federal Communications Act of
1934, 47 U.S.C. §
151, et seq.
(c) The location and installation of fiber
optic cable facilities on state freeway rights-of-way shall be governed by this
Rule and, where applicable, by other provisions of this Chapter and the rules
and regulations of the Federal Highway Administration with respect to the
accommodation of utilities, 23 C.F.R. Part
645, Subpart B, as
amended.
(d) To the extent that the
specific provisions of this Rule conflict with other provisions of Chapter
1680-6-1, the specific provisions of this Rule shall govern.
(3) Definitions.
(a) "Advisory Board" means the advisory board
established under Section
54-16-112 of the Tennessee Code
with the authority to establish the rate of compensation, and a method for the
valuation of in-kind compensation, for the use of state freeway rights-of-way
to install underground fiber optic cable lines and related
facilities.
(b) "Clear Zone" when
used in reference to the use of state freeway rights-of-way to install
underground fiber optic cable facilities under this Rule means the roadside
border area available for use by errant vehicles, starting from the edge of the
traveled way and extending outward to a distance of not less than 30 feet. For
administrative practicality, the Department will generally presume that the
clear zone along a state freeway is 30 feet wide. In specific locations,
however, the Department may determine that a wider clear zone is required in
the interest of public safety, and in such cases the Department will establish
the width of the clear zone based on the roadway design speed, average daily
traffic and embankment slopes, as provided in the American Association of State
Highway and Transportation Officials, Roadside Design Guide.
(c) "Conduit" means a hollow tube or duct (of
varying sizes) used to enclose innerducts for the underground installation of
fiber optic cable.
(d) "Innerduct"
means a hollow, flexible tube (of varying sizes) used to enclose fiber optic
cables for underground installation, and which may be enclosed within
conduit.
(e) "Longitudinal" means
an installation that is parallel or nearly parallel to the alignment of the
highway.
(f) "Rural" when used in
reference to the use of state freeway rights-of-way under this Rule means the
right-of-way along any segment of a freeway that is not otherwise defined as
"urban" or "suburban" under this Rule.
(g) "State freeway" means all freeways within
the State of Tennessee designated either as a state highway by the Department
of Transportation or as a federal interstate highway.
(h) "Suburban" when used in reference to the
use of state freeway rights-of-way under this Rule means any of the following,
unless the segment of freeway right-of-way is otherwise defined as "urban"
under this Rule:
1. The right-of-way along any
segment of state freeway within 10 miles outside the urban area boundary of a
city having a population of 100,000 or more according to the most recent
federal census; and/or
2. The
right-of-way along any segment of state freeway within the urban area boundary
of any city having a population of 20,000 or more according to the most recent
federal census; provided, that where one side of the freeway is within the
urban area boundary of such a city, the right-of-way along both sides of the
freeway shall be considered suburban; and/or
3. The right-of-way along any state freeway
that serves as a beltway around any part of a city having a population of
100,000 or more according to the most recent federal census where any part of
such freeway is within 10 miles outside the urban area boundary of such city,
including without limitation State Route 385 in Shelby County.
(i) "Telecommunications company"
means any public agency (not including any agency of the State of Tennessee),
or any cooperative, corporation, partnership or individual named in the Use and
Occupancy Agreement that may locate, install or maintain fiber optic cable
facilities within the rights-of-way of state freeways.
(j) "Term" means the duration of the Use and
Occupancy Agreement under which a telecommunications company locates, installs
and maintains fiber optic cable facilities within the rights-of-way of state
freeways.
(k) "Urban" when used in
reference to the use of state freeway rights-of-way under this Rule means the
right-of-way along any segment of a freeway within the urban area boundary of a
city having a population of 100,000 or more according to the most recent
federal census; provided, that where one side of the freeway is within the
urban area of such a city, the right-of-way along both sides of the freeway
shall be considered urban.
(l)
"Urban area boundary" for the purposes of this Rule means the boundary of the
urbanized area of a city having a population of 20,000 or more according to the
most recent federal census. These urban area boundaries are established by the
Department of Transportation and the city in cooperation with one another, and
subject to the approval of the United States Secretary of Transportation, in
accordance with 23 U.S.C. §
101.
(4) Use and Occupancy Agreement Requirements.
(a) No telecommunications company shall be
permitted to install underground fiber optic cable lines or related facilities
within state freeway rights-of-way without first executing a Use and Occupancy
Agreement.
(b) Upon making
application to the Department of Transportation for a Use and Occupancy
Agreement under this Rule, the telecommunications company shall pay an
application fee to the Department of Transportation for processing the
application, reviewing plans, and other administrative services, but not
including inspection services, which shall be separately charged as provided in
Rule 1680-6-1-.04(10). The total amount of the required application fee shall
include a base fee of $200 plus $10 for each mile of the proposed installation
within state freeway rights-of-way.
(c) Each Use and Occupancy Agreement for the
longitudinal installation of fiber optic cable facilities within state freeway
rights-of-way shall be subject to this Rule and specifically, but without
limitation, to the following terms and conditions:
1. Right to Cross.
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.
2. Assignment.
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.
3. Indemnification and Hold
Harmless.
(i) The telecommunications company
shall indemnify the State of Tennessee and the Department of Transportation,
and their officers, employees and agents, and hold them harmless to the maximum
extent allowed under Tennessee law for any and all claims arising from the
telecommunications company's use of the freeway right-of-way to install,
operate and/or maintain fiber optic cable facilities, including claims by third
parties, and including attorneys' fees and all other costs of preparing for and
defending against such claims, regardless of any negligence or fault of the
State of Tennessee or Department of Transportation.
(ii) Without limiting the foregoing, the
telecommunications company shall hold the State of Tennessee and Department of
Transportation, and their officers, employees and agents, harmless, to the
maximum extent allowed under Tennessee law, for any personal injury or property
damage, including interruption of service or loss of business, incurred by the
telecommunications company, or its officers, employees or agents, arising from
the Department of Transportation's construction, reconstruction, operation or
maintenance of the freeway or freeway right-of-way, regardless of any
negligence or fault of the State of Tennessee or Department of
Transportation.
4.
Insurance.
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:
(i) Commercial general liability insurance,
in form and substance acceptable to the Department of Transportation.
(ii) Commercial automobile liability
insurance, in form and substance acceptable to the Department of
Transportation, for all vehicles owned or used by the telecommunications
company in any phase of the construction, installation, operation, maintenance
or repair of its fiber optic cable facilities within the freeway
right-of-way.
(iii) All such
liability insurance policies shall provide liability coverage sufficient, at a
minimum, to match the State's limits of liability under Section
9-8-307 of the Tennessee Code.
These limits are currently set at $300,000 per claimant and $1,000,000 per
occurrence, but they are subject to change without amendment of this
Rule.
(iv) All such liability
insurance policies shall name the State of Tennessee and Department of
Transportation each as an additional insured for the purposes of fulfilling the
telecommunications company's obligations under the Use and Occupancy Agreement,
including without limitation any and all obligations to indemnify and hold
harmless the State of Tennessee and Department of Transportation, and their
officers, employees and agents.
5. Surety Bond.
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.
6. Relocation or
Removal.
(i) If, at any time, the Department
of Transportation determines that any fiber optic cable facilities need to be
relocated within, or removed from, the state freeway right-of-way for any
reason related to the use, operation, maintenance, construction or
reconstruction of the freeway, the telecommunications company shall relocate or
remove the facilities as directed by written notice from the Department of
Transportation.
(ii) All such costs
of relocation or removal, including the cost of relocating any part of the
fiber optic cable facilities reserved to the Department of Transportation under
the Use and Occupancy Agreement, shall be borne by the telecommunications
company and not by the Department, except as the Department may otherwise agree
in accordance with a special condition of the Use and Occupancy Agreement
executed prior to the installation, or as the Department may subsequently agree
in writing under a utility relocation contract.
(iii) The telecommunications company shall
complete the relocation or removal within such time as the Department of
Transportation shall specify by written notice, or within such additional time
as the Department of Transportation may authorize in writing. Upon the failure
of the telecommunications company to relocate or remove the fiber optic cable
facilities within the specified time, or such additional time as the Department
may authorize in writing, the fiber optic cable facilities shall be deemed to
be abandoned by the telecommunications company, and the Department of
Transportation shall be deemed the owner thereof; provided, however, that the
Department of Transportation, in its sole discretion, may refuse ownership of
the abandoned fiber optic cable facilities at any time within one year after
the abandonment and thereupon hold the telecommunications company liable for
the costs of removing such facilities from the state freeway
right-of-way.
(iv) To the extent
that the telecommunications company is required to remove fiber optic cable
facilities from the state freeway right-of-way, the telecommunications company
shall to that extent be relieved of any further obligation under the Use and
Occupancy Agreement to compensate the Department for the use of the state
freeway right-of-way. To the extent that the telecommunications company is
allowed to relocate fiber optic cable facilities to another location within the
freeway right-of-way, the telecommunications company may elect either to remain
under the terms of compensation specified in the Use and Occupancy Agreement,
or the telecommunications company may choose to enter into a new Use and
Occupancy Agreement for the new location.
(5) Duration and Renewal of Use
and Occupancy Agreements.
(a) Term Options.
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.
(b) Renewal Options.
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.
(6)
Compensation.
(a) Compensation Requirement.
1. No telecommunications company shall be
permitted to install underground fiber optic cable lines or related facilities
longitudinally within state freeway rights-of-way except upon the payment of
compensation for the use of such rights-of-way, as provided in Section
54-16-112 of the Tennessee
Code.
2. The Department of
Transportation, at its option, may receive the compensation for use of state
freeway rights-of-way in the form of money or as in-kind compensation in the
form of telecommunications facilities or services, or both.
(b) Rate and Method of
Compensation.
1. The rate of compensation and
the method of valuation for in-kind compensation shall be as established by the
Advisory Board. As established by the Advisory Board, the rate of compensation
varies according to the type of state freeway right-of-way (urban, suburban or
rural) in which the fiber optic cable facilities are located, and a surcharge
shall be added to the applicable rate of compensation where the fiber optic
cable facilities are located within the clear zone.
2. The current rate structure and method of
valuation for in-kind compensation are set forth in the Rate Sheet reproduced
in the Appendix to this Rule at Paragraph (12). This Rate Sheet may be amended
by the Advisory Board, as provided in Section
54-16-112 of the Tennessee Code,
without amendment of this Rule.
(c) Total Amount of Compensation.
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.
(d) Unit Measure
of Compensation.
1. There shall be a separate
charge for each innerduct containing fiber optic cable that a
telecommunications company installs in the right-of-way or for each fiber optic
cable buried in the right-of-way without an innerduct, except that there shall
be no charge for any innerduct or fiber optic cable provided to the Department
of Transportation as in-kind compensation.
2. The minimum charge for each such innerduct
or cable shall be based on the rate of compensation established by the Advisory
Board for a one and one-quarter inch (11/4") innerduct.
3. The charge for larger innerduct or cable
shall be calculated on a pro rata basis. For example, the charge for a two and
one-half inch (21/2") innerduct shall be twice the charge for a one and
one-quarter inch (11/4") innerduct.
(e) Empty Innerduct.
1. There shall be no charge for empty
innerduct or conduit installed vertically within the same trench line along the
state freeway right-of-way in accordance with a Use and Occupancy Agreement;
provided, however, that each separate trench line shall require a Use and
Occupancy Agreement and shall be subject to a minimum charge based on the rate
of compensation for a one and one-quarter inch (11/4") innerduct.
2. The installation of fiber optic cable in
an empty innerduct or conduit shall not be permitted except upon the execution
of a new Use and Occupancy Agreement. Compensation for the installation of
fiber optic cable in such empty innerduct or conduit shall be fixed on the date
of execution of the new Use and Occupancy Agreement, in accordance with the
applicable rate and method of valuation for in-kind compensation established by
the Advisory Board at that time.
(f) In-Kind Compensation.
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.
(7) General Installation Policies.
(a) Timing of Installations.
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.
(b) Minimum
Installation.
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.
(8) Location and
Alignment Criteria.
(a) General Location
Policy.
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.
(b) Horizontal Clearance.
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.
(c) Depth.
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.
(d)
Access Points.
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.
(e) Support Facilities.
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.
(f)
Attachment to Freeway Structures.
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.
(g) Service
Connections.
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.
(9) Clear Zone Considerations.
(a) General Clear Zone Location Policy.
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.
(b) Limitation of
Installations Within the Clear Zone.
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.
(c) Clear Zone Installation Terms
and Conditions.
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:
1. The telecommunications company may be
required to provide other telecommunications companies with reasonable notice
of the anticipated or planned opening of the right-of-way within the clear
zone.
(i) The notice period should provide
such time as another telecommunications company may reasonably require to
develop business plans and obtain financing in order to participate in the
installation of fiber optic cable facilities during the anticipated or planned
opening of the right-of-way within the clear zone, and in any event the notice
period should not be less than 60 days.
(ii) The required notice may be accomplished
through the publication of a notice of the proposed project, including the
anticipated construction schedule, for three consecutive days in a newspaper of
general circulation within the area of the project, and by the mailing of such
notice to all incumbent local exchange carriers (ILECs) within the area of the
project, to all facilities-based competitive local exchange carriers (CLECs)
and interexchange carriers (IXCs) certified by the Tennessee Regulatory
Authority, and to such other potentially interested parties as the Department
of Transportation may direct.
2. The telecommunications company may be
required to install spare fiber cable lines, empty innerducts, and/or empty
conduit sufficient to accommodate reasonably anticipated future
demand.
3. For each section of
fiber, empty innerduct or empty conduit within the clear zone, the
telecommunications company may be required to install connection points
(manhole or cabinets) outside the clear zone, or elsewhere as the Department of
Transportation may direct, where other telecommunications companies may, at
their option, access or interconnect with these facilities.
4. The rates, terms and conditions for
interconnection with facilities and/or the use of empty innerduct or conduit
space within the clear zone should be fair, reasonable and non-discriminatory,
but may include a reasonable profit, in accordance with applicable regulations
and guidelines of the Federal Communications Commission and/or Tennessee
Regulatory Authority.
5. The
telecommunications company may be required to make fiber available for sale to
other telecommunications companies on an "irrevocable right to use" basis at
such rates and upon such terms and conditions as are fair, reasonable and
non-discriminatory, but which may include a reasonable profit, in accordance
with applicable regulations and guidelines of the Federal Communications
Commission and/or Tennessee Regulatory Authority.
6. The telecommunications company may be
required to offer facilities and services for resale at such rates and upon
such terms and conditions as are fair, reasonable and non-discriminatory, but
which may include a reasonable profit, in accordance with applicable
regulations and guidelines of the Federal Communications Commission and/or
Tennessee Regulatory Authority.
7.
If the telecommunications company provides retail telecommunications service,
either directly or through an affiliated entity, it may be required to provide
such services at such rates, terms and conditions as are fair, reasonable and
non-discriminatory, in accordance with applicable regulations and guidelines of
the Federal Communications Commission and/or Tennessee Regulatory
Authority.
(10) Installation and Maintenance
Requirements.
(a) General Standards of Care.
1. The telecommunications company shall take
care not to install any fiber optic cable facility in such a manner as to
create a potential hazard to life, health or property or in such a manner as to
impair the use, operation and maintenance of the freeway.
2. The telecommunications company shall
cooperate with the Department of Transportation to identify locations for fiber
optic cable facilities within the freeway right-of-way that will, to the extent
it is reasonably practical, minimize any potential conflict with the future
expansion or reconstruction of the freeway. The telecommunications company
shall also take care to install all fiber optic cable facilities in such manner
as to require only minimal maintenance within the freeway right-of-way after
installation.
(b)
Tennessee One-Call Service.
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.
(c) Permits and Approvals.
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.
(d) Minimum Installation and
Maintenance Controls.
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:
1.
Installation and Maintenance Plan.
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:
(i) The location
and method of installing each part of the fiber optic cable facility within the
right-of-way;
(ii) The means by
which access to and within the right-of-way shall be accomplished for the
purpose of installing, servicing and maintaining each part of the fiber optic
cable facility, including provisions for ingress and egress, parking of
vehicles and equipment, and storage of materials;
(iii) The means by which the
telecommunications company will provide for the control of traffic on the
freeway, if needed, in the course of installing, servicing or maintaining any
part of the fiber optic cable facility;
(iv) The schedule for completing the
installation of the fiber optic cable facility, or parts thereof, within the
right-of-way; and
(v) The procedure
by which the telecommunications company will conduct emergency maintenance
operations within the right-of-way.
2. Preservation of Pavement Structure.
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.
3. Blasting.
When blasting is necessary, the telecommunications company
shall follow the guidelines established in Rule 1680-6-1-.07.
4. Access to Right-of-Way for Installation
and Maintenance.
(i) As far as it is
reasonably practical, all fiber optic cable facilities should be designed and
located in such a manner that they can be installed, serviced and maintained
without direct access thereto from the traveled way, access ramps or shoulders
of the freeway. Such direct access may be permitted in special circumstances
where there is no reasonably practical alternative means of access and the
telecommunications company has made adequate provisions for controlling access
to the work zone, directing traffic, and protecting the safety of workers and
the traveling public, as specified in the installation and maintenance plan
approved by the Department of Transportation.
(ii) Except as may be permitted under special
circumstances as described above, access to the freeway right-of-way for the
installation, servicing or maintenance of fiber optic cable facilities shall be
limited to:
(I) Frontage roads, where
available;
(II) Adjacent or nearby
public roads and streets;
(III)
Trails along or near the freeway right-of-way line that connect only to an
intersecting road; or
(IV) Adjacent
private property behind the access control fence.
(iii) In every case where the Department of
Transportation has permitted a temporary break in the access control fence
under this Part, the telecommunications company shall have the responsibility
to maintain control of access to the state freeway right-of-way as specified in
the installation and maintenance plan approved by the Department. Upon
completion of the fiber optic cable facility installation in any part of the
freeway where a temporary break in access control has been permitted, the
telecommunications company shall promptly restore the access control fence as
specified by the Department.
5. Parking of Vehicles.
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.
6. Traffic Control.
(i) All traffic control signs or other
traffic control devices that the telecommunications company may use in the
course of any installation, servicing or maintenance of a fiber optic cable
facility shall comply with the provisions of Chapter 1680-6-1 and the Manual on
Uniform Traffic Control Devices, as adopted in Chapter 1680-3-1.
(ii) In addition, the telecommunications
company shall arrange for law enforcement officers having appropriate
enforcement authority to be present to ensure the safe flow of traffic whenever
any installation, servicing or maintenance of a fiber optic cable facility
occurs within the clear zone of the freeway or as may be required in the
installation and maintenance plan approved by the Department of Transportation
where access to the work zone has been permitted from the traveled way,
shoulders or access ramps of the freeway. The telecommunications company may
not conduct any such work within the right-of-way without giving specific
advance notice thereof to the Department of Transportation.
7. Advance Notice of Installation
or Maintenance Work.
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.
8. Emergency Maintenance or Repair.
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.
(e) Cessation of Work for Public Safety.
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.
(f) Ecological, Historical and Archaeological
Considerations.
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.
(g) Trees.
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.
(h) Hazardous Substances.
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.
(i)
Installation of Access Points for the Department of Transportation.
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.
(j) Inspection.
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.
(k) Above-Ground
Markers.
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.
(l) Repair and Restoration of
Premises.
1. The telecommunications company
shall, as directed by and in a manner satisfactory to the Department of
Transportation, promptly replace or repair any portion of the pavement,
shoulders, structures, ramps, guardrail, drainage, or any other part of the
freeway that may have been damaged in the course of any work within the state
freeway right-of-way.
2. Upon the
completion of any installation, replacement, repair or relocation of fiber
optic cable facilities within the state freeway rights-of-way, the
telecommunications company shall promptly restore the premises to a condition
similar to that which existed prior to such work, in a manner satisfactory to
the Department of Transportation.
3. The telecommunications company shall
remain responsible for maintaining any excavation or trench on or along the
state freeway right-of-way, as directed by and in a manner satisfactory to the
Department of Transportation.
(m) As-Built Drawings.
"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.
(11) Compliance and Revocation.
(a) In the event that the Department of
Transportation determines that the telecommunications company is in violation
of any provision of this Rule or the Use and Occupancy Agreement, the
Department of Transportation may order the telecommunications company to
comply.
(b) In any case not
presenting any imminent threat to public safety, as determined by the
Department of Transportation, the telecommunications company shall be given
thirty (30) days, or such other reasonable time as the Department may provide,
within which to correct the noncompliance.
(c) In any case presenting an imminent threat
to public safety, as determined by the Department of Transportation, the
telecommunications company shall correct the noncompliance promptly as directed
by the Department.
(d) If the
telecommunications company fails to comply with any order or directive given by
the Department of Transportation under this Paragraph, the Department of
Transportation may revoke the Use and Occupancy Agreement, after such notice
and opportunity for hearing, if any, as may be required by law.
(e) The telecommunications company shall not
be entitled to any compensation or reimbursement of expenses in the event of
such revocation of the Use and Occupancy Agreement.
(f) Upon the revocation of the Use an
Occupancy Agreement, the telecommunications company shall promptly remove any
fiber optic cable facilities within the state freeway right-of-way, in such
manner and within such time as the Department of Transportation may direct. If
the telecommunications company fails to remove the fiber optic cable facilities
within the time directed, the fiber optic cable facilities shall be deemed to
be abandoned by the telecommunications company, and the Department of
Transportation shall be deemed the owner thereof; provided, however, that the
Department of Transportation, in its sole discretion, may refuse ownership of
the abandoned fiber optic cable facilities at any time within one year after
the abandonment and thereupon hold the telecommunications company liable for
the costs of removing such facilities from the freeway right-of-way.
(12) Appendix: Rate Sheet Adopted
by the Advisory Board.
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
