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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 992
Introduced by Friesen, 34; Bostelman, 23.
Read first time January 14, 2020
Committee: Transportation and Telecommunications
1 A BILL FOR AN ACT relating to telecommunications; to amend sections
2 75-109.01, 86-127, and 86-577, Reissue Revised Statutes of Nebraska,
3 and sections 86-579 and 86-1102, Revised Statutes Cumulative
4 Supplement, 2018; to adopt the Broadband Internet Service
5 Infrastructure Act; to state legislative intent; to provide for a
6 state broadband coordinator; to provide duties for the Public
7 Service Commission and Nebraska Library Commission as prescribed; to
8 create the Nebraska E-Rate Special Construction Matching Fund
9 Program; to change provisions relating to the lease of dark fiber;
10 to terminate a fund; to provide a term of service for certain Rural
11 Broadband Task Force members; to harmonize provisions; to repeal the
12 original sections; and to outright repeal section 86-580, Reissue
13 Revised Statutes of Nebraska.
14 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 5 of this act shall be known and may be
2 cited as the Broadband Internet Service Infrastructure Act.
3 Sec. 2. For purposes of the Broadband Internet Service
4 Infrastructure Act:
5 (1) Attached facility means a broadband facility or a broadband
6 network, or any portion of a broadband network, located substantially:
7 (a) Aboveground and attached to an electric utility's electric
8 service infrastructure; or
9 (b) Underground in an electric utility easement and existing before
10 the delivery of notice pursuant to section 3 of this act;
11 (2) Commercial broadband service means broadband service as such
12 term is defined in 7 U.S.C 950bb(b)(1), as such section existed on
13 January 1, 2020, or broadband Internet service;
14 (3)(a) Commercial broadband supplier means:
15 (i) A provider of commercial broadband services; or
16 (ii) A person that directly or indirectly sells, leases, or
17 otherwise transfers an attached facility or a right to install, operate,
18 maintain, or use an attached facility for another person's provision of
19 commercial broadband service or a person that intends to sell, lease, or
20 otherwise transfer an attached facility or a right to install, operate,
21 maintain, or use an attached facility; and
22 (b) Commercial broadband supplier does not include an electric
23 utility;
24 (4) Electric utility easement means a recorded or unrecorded
25 easement, right-of-way, or similar right in or to real property,
26 including prescriptive rights, no matter how acquired, held by an
27 electric utility for the siting of electric service infrastructure or for
28 the purpose of delivering electric service, regardless of whether:
29 (a) The easement or other right is exclusively for the provision of
30 electric service or for use in connection with commercial broadband
31 service, telecommunications service, or another purpose; or
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1 (b) The electric utility or a commercial broadband supplier uses the
2 easement or other right to provide commercial broadband service;
3 (5) Electric utility means any entity defined in subdivision (8) of
4 section 70-601;
5 (6) Interest holder means a property owner or other person with an
6 interest in the real property upon which an electric utility easement is
7 located;
8 (7) Memorandum means a written instrument that includes, at a
9 minimum, the name and address of the electric utility, the date on which
10 the notice was mailed, and the information required to be included in a
11 notice;
12 (8) Notice means a written letter substantially complying with the
13 requirements set forth in subdivision (2)(b) of section 3 of this act,
14 which notice shall be deemed delivered on the date postmarked or
15 otherwise time stamped;
16 (9) Person means an individual, firm, partnership, company,
17 corporation, trust, limited liability company, association, joint
18 venture, or any other legal entity;
19 (10) Property owner means a person with a recorded interest in real
20 property upon which an electric utility easement is located; and
21 (11) Request for notice means a written instrument recorded by an
22 interest holder in compliance with the requirements set forth in
23 subdivision (2)(c) of section 3 of this act.
24 Sec. 3. (1) For real property subject to an electric utility
25 easement, if an electric utility, or any commercial broadband supplier
26 designated by the electric utility to act on its behalf, complies with
27 the notice and filing requirements set forth in subsection (2) of this
28 section, the electric utility holding the electric utility easement may,
29 subject to subsection (4) of this section and without the consent of an
30 interest holder in the real property subject to the electric utility
31 easement, take the following actions to the extent not already permitted
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1 by the electric utility easement:
2 (a) Install, maintain, or own, or permit any commercial broadband
3 supplier to install, maintain, or own, an attached facility for operation
4 by a commercial broadband supplier in providing commercial broadband
5 service; and
6 (b) Lease or otherwise provide to a commercial broadband supplier
7 any excess capacity of attached facilities for purposes of providing
8 commercial broadband service.
9 (2)(a) At least thirty days before first exercising an action under
10 one or both of subdivision (1)(a) or (1)(b) of this section with respect
11 to an electric utility easement or portion of an electric utility
12 easement, an electric utility or its designated commercial broadband
13 supplier shall send notice to each property owner that holds an interest
14 in the real property subject to the electric utility easement and any
15 other interest holder that has recorded a request for notice and shall
16 record a memorandum in the office of the county clerk in each county in
17 which the electric utility is exercising action under subsection (1) of
18 this section. An electric utility or its designated commercial broadband
19 supplier may only commence an action under subsection (1) of this section
20 upon delivery of such notice.
21 (b) Notice pursuant to this subsection shall:
22 (i) Be sent by certified mail from or on behalf of the electric
23 utility to the property owner and any interest holder that has recorded a
24 request for notice at each of the following, as applicable:
25 (A) The last-known address for the property owner based on the
26 electric utility's records;
27 (B) The address listed for the property owner in the records of the
28 office of the county assessor; and
29 (C) The address set forth in a request for notice;
30 (ii) Include the name, address, telephone number, and named point of
31 contact for the electric utility and, if delivered by a commercial
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1 broadband supplier designated by the electric utility, the name, address,
2 telephone number, and named point of contact for the designated
3 commercial broadband supplier;
4 (iii) Include the property address, the recording number, if any, of
5 the electric utility easement or recorded memorandum of the electric
6 utility easement, a general description of any existing electric service
7 infrastructure currently located in the electric utility easement, and
8 the approximate location of the electric utility easement;
9 (iv) Include:
10 (A) A reference to the Broadband Internet Service Infrastructure
11 Act; and
12 (B) A copy of the language of subsection (1) of this section with an
13 indication of whether the electric utility is exercising action under one
14 or both of subdivision (1)(a) or (1)(b) of this section;
15 (v) Give an estimated time for the start of installation or
16 construction with regard to any new installation or construction that
17 will occur in connection with the exercise of action under subsection (1)
18 of this section;
19 (vi) Include a statement regarding the right and obligation of the
20 electric utility, or its designated commercial broadband supplier, to
21 record a memorandum; and
22 (vii) Include a statement regarding the statute of limitations for
23 the interest holder to file a claim with respect to the electric
24 utility's exercise of action.
25 (c) An interest holder that desires to obtain notice at a specific
26 address may file in the office of the county clerk for the county in
27 which the real property is located a request for notice that identifies
28 the interest holder's name and address, the instrument granting the
29 interest holder's interest in the property, and the recording number of
30 the instrument or a recorded memorandum of the instrument.
31 (3) Upon exercise of an action set forth in subsection (1) of this
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1 section, such action runs with the land and is assignable by the electric
2 utility, subject to provisions of law.
3 (4) The terms and conditions of a written electric utility easement
4 apply to an electric utility's use of the electric utility easement set
5 forth in subsection (1) of this section, except for those terms and
6 conditions that would prohibit the electric utility's exercise of action
7 under subsection (1) of this section. A prohibition on aboveground
8 electric service infrastructure contained within a written electric
9 utility easement constitutes a prohibition on aboveground attached
10 facilities. In connection with the exercise of such action under
11 subsection (1) of this section, an electric utility or its designated
12 commercial broadband supplier shall comply with any notice requirements
13 contained in a written electric utility easement held by the electric
14 utility related to entering the real property subject to the electric
15 utility easement or commencing any construction or installation on the
16 real property.
17 (5) Nothing in this section requires an electric utility to comply
18 with subsection (2) of this section in order to take any action or
19 exercise any rights under an electric utility easement that is already
20 permitted within the scope of the electric utility easement. Unless
21 expressly prohibited by the terms of an electric utility easement, an
22 electric utility easement shall be deemed to allow an electric utility to
23 install, maintain, own, permit, lease, or provide, or allow a third party
24 to install, maintain, own, or provide for beneficial use by the electric
25 utility, telecommunications facilities and equipment for use in
26 connection with the electric utility's provision of electricity.
27 Sec. 4. (1)(a) No claim or cause of action against an electric
28 utility or a commercial broadband supplier concerning the electric
29 utility's or commercial broadband supplier's exercise of action under
30 section 3 of this act or any actions that the electric utility or
31 commercial broadband supplier takes before the effective date of this act
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1 that, if taken after the effective date of this act, would be authorized
2 under subsection (1) of section 3 of this act may be brought by or on
3 behalf of an interest holder more than two years after the latest of:
4 (i) The effective date of this act;
5 (ii) The date of delivery of notice pursuant to subsection (2) of
6 section 3 of this act; or
7 (iii) The date of recording of a memorandum pursuant to subsection
8 (2) of section 3 of this act.
9 (b) Subdivision (1)(a) of this section does not apply to a claim or
10 cause of action based on:
11 (i) Physical damage to property;
12 (ii) Injury to natural persons; or
13 (iii) Breach of the terms and conditions of a written electric
14 easement as the terms and conditions apply in accordance with subsection
15 (4) of section 3 of this act.
16 (c) Nothing in this section extends the statute of limitations
17 applicable to a claim or revives an expired claim.
18 (2) A claim or cause of action to which subdivision (1)(a) of this
19 section applies shall not be brought by or on behalf of an interest
20 holder against a commercial broadband supplier for notice provided by the
21 commercial broadband supplier on behalf of an electric utility under
22 subsection (2) of section 3 of this act. Nothing in this subsection
23 prohibits an electric utility and a commercial broadband supplier from
24 contracting to allocate liability for notice required under subsection
25 (2) of section 3 of this act.
26 (3) If an interest holder brings a trespass claim, inverse
27 condemnation claim, or any other claim or cause of action to which
28 subdivision (1)(a) of this section applies for an electric utility's or
29 commercial broadband supplier's performance of actions described in
30 subdivision (1)(a) or (1)(b) of section 3 of this act, the following
31 applies to the claim or cause of action:
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1 (a) The measure of damages for all claims or causes of action to
2 which subdivision (1)(a) of this section applies, taken together, is the
3 fair market value of the reduction in value of the interest holder's
4 interest in the real property. In determining or providing the fair
5 market value under this subdivision (a):
6 (i) The following shall not be used and are not admissible as
7 evidence in any proceeding:
8 (A) Profits, fees, or revenue derived from the attached facilities;
9 or
10 (B) The rental value of the real property interest or the electric
11 easement, including the rental value of any attached facilities or an
12 assembled broadband corridor; and
13 (ii) Consideration must be given to any increase in value to the
14 real property interest resulting from the availability of commercial
15 broadband service to the real property underlying the real property
16 interest that arises from the installation of attached facilities.
17 (b) The interest holder shall make reasonable accommodations for the
18 electric utility or commercial broadband supplier to perform an appraisal
19 or inspection of the real property within ninety days following any
20 written request for an appraisal or inspection. If an interest holder
21 fails to make such accommodations, the electric utility or commercial
22 broadband supplier has no further liability to the interest holder with
23 respect to such claim or cause of action. The electric utility or
24 commercial broadband supplier shall promptly provide to