SB0467sam003 94TH GENERAL ASSEMBLY

Sen. William R. Haine

Filed: 4/11/2005

09400SB0467sam003 LRB094 09486 MKM 44785 a

AMENDMENT TO SENATE BILL 467

AMENDMENT NO. ______. Amend Senate Bill 467 by replacing everything after the enacting clause with the following:

"Section 5. The Public Utilities Act is amended by adding Section 13-714 as follows:

(220 ILCS 5/13-714 new)

(Section scheduled to be repealed on July 1, 2005)

Sec. 13-714. Crossing of railroad right-of-way.

(a) The General Assembly finds that:

(1) universally available high-speed telecommunications services are essential to the prosperity of all Illinois citizens; and

(2) telecommunications carriers should be allowed access to railroad rights-of-way for the deployment of high speed telecommunications services via reasonable procedures, subject to reasonable costs, and in a timely fashion.

(b) As used in this Section, unless the context otherwise requires:

"Crossing" means the construction, operation, repair, or maintenance by a telecommunications carrier of reasonably necessary facilities that cross entirely over, on, or under a railroad right-of-way from side to side of the railroad right-of-way at no less than a 60 degree angle.

"Direct expenses" includes, but is not limited to, any or all of the following:

(1) The cost of inspecting and monitoring the crossing site.

(2) Administrative and engineering costs for review of specifications and for entering a crossing on the railroad's books, maps, and property records and other reasonable administrative and engineering costs incurred as a result of the crossing.

(3) Document and preparation fees associated with a crossing, and any engineering specifications related to the crossing.

(4) Damages assessed in connection with the rights granted to a telecommunications carrier with respect to a crossing.

"Facilities" means any cables, conduits, wires, and other appurtenant materials and equipment, excluding (i) all surface installations other than supporting poles and guys and manholes and (ii) empty conduits.

"Railroad" or "railroad corporation" means (i) a railroad corporation that is the owner, operator, occupant, manager, or agent of a railroad right-of-way or the railroad corporation's successor in interest and (ii) a "transportation system", as defined in Section 2 of the Metropolitan Transportation Authority Act. "Railroad" and "railroad corporation" includes an interurban railway.

"Railroad right-of-way" means one or more of the following:

(1) A fee, easement, right-of-way, license, or interest in real estate on which a railroad is located or on which a located was located in the past.

(2) A right-of-way or other interest in real estate that is owned or operated by a railroad corporation, the trustees of a railroad corporation, or the successor in interest of a railroad corporation.

(3) A right-of-way or other interest in real estate that is occupied or managed by or on behalf of a railroad corporation, the trustees of a railroad corporation, or the successor in interest of a railroad corporation, including an abandoned railroad right-of-way that has not otherwise reverted.

(4) Any other interest in a former railroad right-of-way that has been acquired or is operated by a land management company or similar entity.

"Special circumstances" means either or both of the following:

(1) The existence of unique characteristics of a segment of railroad right-of-way or of a proposed utility facility that increases the direct expenses associated with a proposed crossing.

(2) A proposed crossing that involves a significant and imminent likelihood of danger to the public health or safety or that is a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way, necessitating additional terms and conditions associated with the crossing.

(c) Notification by a telecommunications carrier to a railroad required prior to the commencement of any crossing activity shall not exceed 30 days.

(d) The railroad and the telecommunications carrier must maintain and repair its own property within the railroad right-of-way and bear responsibility for its own acts and omissions.

(e) A telecommunications carrier shall have immediate access to a crossing for repair and maintenance of existing facilities in case of emergency.

(f) Applicable engineering standards shall be complied with for facilities crossing railroad rights-of-way.

(g) The telecommunications carrier shall be provided an expedited crossing, absent a claim of special circumstances, after payment by the telecommunications carrier of the standard crossing fee, if applicable, and submission of completed engineering specifications to the railroad.

(h) The telecommunications carrier and the railroad may agree to other terms and conditions necessary to provide for reasonable use of a railroad right-of-way by a telecommunications carrier.

(i) The Commission shall adopt rules prescribing terms and conditions in addition to those contained in this Section for a crossing to ensure that any crossing be consistent with the public convenience and necessity and reasonable service to the public.

(j) Unless otherwise agreed by the parties and subject to subsection (k), a telecommunications carrier that locates its facilities within the railroad right-of-way for a crossing, other than a crossing along the public roads of the State pursuant to the Telephone Line Right of Way Act, shall pay the railroad a one-time standard crossing fee of $2,000 for each crossing. The standard crossing fee shall be in lieu of any license or any other fees or charges to reimburse the railroad for the direct expenses incurred by the railroad as a result of the crossing. The telecommunications carrier shall also reimburse the railroad for any actual flagging expenses associated with a crossing in addition to the standard crossing fee.

(k) Notwithstanding subsections (c) through (i), rules adopted by the Commission shall not prevent a railroad and a telecommunications carrier from otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to the crossing.

(l) Notwithstanding subsection (k), This Section shall not impair the authority of a telecommunications carrier to secure crossing rights by easement pursuant to the exercise of the power of eminent domain.

(m) A railroad or telecommunications carrier that believes special circumstances exist for a particular crossing may petition the Commission for relief. If a petition for relief is filed, the Commission shall determine whether special circumstances exist that necessitate either a modification of the direct expenses to be paid or the need for additional terms and conditions. The Commission may make any necessary findings of fact and determinations related to the existence of special circumstances, as well as any relief to be granted. A final determination of the Commission on the issue of special circumstances shall be considered final agency action subject to judicial review under the Administrative Review Law. The Commission shall assess the costs associated with a petition for relief equitably against the parties.

(n) Pending Commission resolution of a claim of special circumstances raised in a petition, a telecommunications carrier may, upon securing the payment of the standard fee and upon submission of completed engineering specifications to the railroad, proceed with a crossing in accordance with the rules adopted by the Commission, unless the Commission, upon application for emergency relief, determines that there is a reasonable likelihood that either of the following conditions exist:

(1) That the proposed crossing involves a significant and imminent likelihood of danger to the public health or safety.

(2) 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.

If the Commission determines that there is a reasonable likelihood that the proposed crossing meets either condition, then the Commission shall immediately intervene to prevent the crossing until a factual determination is made.

(o) Notwithstanding any provision law to the contrary, this Act shall apply in all crossings of railroad rights-of-way involving a telecommunications carrier and shall govern in the event of any conflict with any other provision of law.

(p) This Section applies to (i) a crossing commenced prior to the effective date of this Section if an agreement concerning the crossing has expired or is terminated and (ii) a crossing commenced on or after the effective date of this Section.".