                                 CODE OF VIRGINIA

FIBER OPTIC BROADBAND LINES CROSSING RAILROADS (§ 56-16.3)

A. For the purposes of this section:
			&#8220;Actual flagging expenses&#8221; means expenses directly attributable
to the cost of maintaining flaggers at the point of the crossing during the
period of time construction is actually occurring. &#8220;Actual flagging
expenses&#8221; shall be considered pass-through expenses and shall not exceed
the expense incurred by the railroad company.
			&#8220;Broadband service provider&#8221; means (i) an entity that provides
broadband service through the utilization of a fiber optic broadband line,
coaxial cable, or other wireline system or (ii) a Phase I or Phase II Utility,
as those terms are defined in subdivision A 1 of &#xA7; 56-585.1, or a
cooperative, as defined in &#xA7; 56-231.15, that provides middle-mile
infrastructure to Internet service providers.
			&#8220;Direct expenses&#8221; includes (i) the cost of inspecting and
monitoring the crossing site; (ii) administrative and engineering costs for
review of specifications and for entering a crossing on the railroad&#8217;s
books, maps, and property records, and other reasonable administrative and
engineering costs incurred as a result of the crossing; (iii) document and
preparation fees associated with a crossing and any engineering specifications
related to the crossing; and (iv) actual flagging expenses associated with the
crossing.
			&#8220;Fiber optic broadband line&#8221; means (i) a fiber optic cable
consisting of one or more thin flexible fibers with a glass core through which
light signals can transmit data as pulses, a coaxial cable, or other wireline
system of technology used for broadband distribution or (ii) the middle-mile
infrastructure to Internet service providers.
			&#8220;License fee&#8221; means the fee to be paid by the broadband service
provider to the railroad company for the crossing, including all occupancy or
real property rights.
			&#8220;Railroad company&#8221; includes any company, trustee, or other person
that owns, leases, or operates a railroad or owns or leases the land upon which
a railroad is operated, and any company, trustee, or other person to which a
railroad company has granted rights to collect or retain all or a portion of any
revenue stream owed by a third party for use of or access to such railroad
company&#8217;s facilities or property.

B. If a broadband service provider deems it necessary in the construction of its
systems to cross the works of a railroad company, including its tracks, bridges,
facilities, and all railroad company rights of way or easements, then the
broadband service provider shall submit an application for such crossing to the
railroad company.

C. The procedure for a crossing shall be as follows:

   1. The broadband service provider&#8217;s application shall include (i) the
   license fee described in subsection G; (ii) engineering design plans,
   construction plans, bore plans, fraction mitigation plans, dewatering plans,
   rigging and lifting plans, and any other pertinent plans deemed necessary and
   prepared by a registered professional engineer; (iii) the location of the
   crossing, including whether it is located in a public right-of-way; (iv) the
   proposed date of commencement of work; (v) the anticipated duration of the
   work in the crossing; (vi) the areas in which the project personnel will work;
   and (vii) the contact information of the broadband service provider&#8217;s
   point of contact. Notice shall also be provided to the electric utility in
   whose certificated service territory the crossing is proposed to be located.

   2. Upon receipt of the broadband service provider&#8217;s crossing
   application, the railroad company shall acknowledge receipt of such
   application.

   3. The railroad company shall review the application and may request
   additional information or clarification from the broadband service provider
   within 15 days from receipt of the application. If additional information or
   clarification is requested, the broadband service provider shall respond
   within 10 days from the receipt of the request.

   4. The railroad company shall approve the broadband service provider&#8217;s
   crossing application within 35 days after the application is received unless
   the railroad company petitions the Commission pursuant to subsection H.

D. Any proposed crossing shall be (i) located, constructed, and operated so as
not to impair, impede, or obstruct, in any material degree, the works and
operations of the railroad to be crossed; (ii) supported by permanent and proper
structures and fixtures; and (iii) controlled by customary and approved
appliances, methods, and regulations to prevent damage to the works of the
railroad and ensure the safety of its passengers.

E. The railroad company and the broadband service provider shall coordinate to
schedule the crossing date, which shall be within 30 days of the approval of the
crossing application, or such later date as indicated in the application or
mutually agreed upon.

F. The broadband service provider shall be responsible for all aspects of the
implementation of the physical crossing, including the construction and
installation of the fiber optic broadband lines and all related equipment,
conduit, wire masts, poles, towers, attachments, and infrastructure. The
railroad company shall be responsible for flagging operations and other
protective measures that it deems appropriate during the actual construction of
fiber optic broadband lines. The broadband service provider shall be responsible
for ensuring that the crossing is constructed and operated in accordance with
accepted industry standards, including standards established by the National
Electrical Safety Code, good utility practice, and industry-standard joint use
processes of electric utilities.

G. The cost of any such crossing shall be borne by the broadband service
provider. A broadband service provider that locates its fiber optic broadband
line within a railroad right-of-way shall pay the railroad company for the right
to make a crossing of the railroad company&#8217;s works a license fee of $2,000
for each crossing unless (i) otherwise agreed to by the broadband service
provider and the railroad company or (ii) the railroad company has petitioned
the Commission as described in subsection H and the Commission has issued a
subsequent order so stating. The broadband service provider shall reimburse the
railroad company for direct expenses in addition to the license fee. Direct
expenses shall not exceed $5,000 unless (a) otherwise agreed to by the broadband
service provider and the railroad company or (b) the railroad company petitions
the Commission for additional reimbursement and the Commission has issued a
subsequent order so stating. The railroad company shall substantiate with
documentation and other direct evidence of the direct expenses incurred to
qualify for reimbursement. The establishment of a license fee cap by the
Commonwealth is an exercise of its stated policy to promote the rapid deployment
of broadband throughout the Commonwealth.

H. If the railroad company asserts that (i) the license fee is not adequate
compensation for the proposed crossing, (ii) the proposed crossing will cause
undue hardship on the railroad company, or (iii) the proposed crossing will
create the imminent likelihood of danger to public health or safety, then the
railroad company may petition the Commission for relief and provide simultaneous
notice to the broadband service provider within 35 days from the date of the
broadband service provider&#8217;s application. The Commission may make any
necessary findings of fact and determinations related to the adequacy of
compensation, the existence of undue hardship on the railroad company, or the
imminent likelihood of danger to public health or safety, as well as any relief
to be granted, including any amount to which the railroad company is entitled in
excess of the license fee prescribed in subsection G. If the railroad company
asserts only that the license fee is not adequate compensation for the specified
crossing, then the issue of compensation may be considered by the Commission
after the commencement or completion of the work. The broadband service provider
may petition the Commission for relief if the railroad company does not comply
with this section or has otherwise wrongfully rejected or delayed its
application. The Commission may, in its discretion, employ expert engineers, to
be paid equally by both companies, to advise the Commission or a representative
of the Commission in (a) examining the location, plans, specifications, and
descriptions of appliances and the methods proposed to be employed; (b) hearing
any objections and considering any modifications that the railroad company
desires to offer; and (c) within such time as the Commission may determine,
rejecting, approving, or modifying such plans and specifications. The Commission
shall adjudicate any petition by the railroad company or broadband service
provider and issue a final order within 90 days of the petition&#8217;s initial
filing. The Commission shall have sole jurisdiction to hear and resolve claims
between railroad companies and broadband service providers concerning crossings
and this section.

I. Notwithstanding the provisions of subsection G, if the broadband service
provider submits an application to the railroad company to cross a section of
track that has been legally abandoned pursuant to an order of a federal or state
agency having jurisdiction over the track and is not being used for railroad
service, then the license fee shall not exceed $1,000.

J. The Commonwealth shall grant a right-of-way to any broadband service provider
seeking to use the right-of-way for broadband deployment to the extent that the
Commonwealth owns any interest in any real property crossed by a railroad or
manages any real property not owned by the Commonwealth that is crossed by a
railroad.

K. Notwithstanding the provisions of subsection G, in no case shall a broadband
service provider be required to pay a license fee for the right to make a
crossing of the railroad company&#8217;s works within a public right-of-way.

L. The broadband service provider shall maintain a commercial general liability
insurance policy or railroad protective liability insurance policy that (i) does
not exclude work within 50 feet of a railroad right-of-way, (ii) includes the
railroad company as an additional insured, and (iii) remains in effect during
the period of time construction is actually occurring.

M. The provisions of this section shall apply notwithstanding any contrary or
other provision of law.

N. The provisions of this section shall be liberally construed and shall be
construed in favor of broadband expansion.

HISTORY: 2023, cc. 713, 714.