28-7385. Longitudinal telecommunication access to highway system right-of-way; compensation
A. The department shall require compensation from a provider for longitudinal access to the right-of-way of a state highway. The compensation shall be all of the following:
1. Fair and reasonable.
2. Competitively neutral.
3. Nondiscriminatory.
4. Open to public inspection.
5. Established to promote access by multiple providers.
6. Established for zones of this state.
7. Established to encourage the deployment of digital infrastructure within this state.
8. A lump sum payment or annual installment, at the option of the provider.
9. Set pursuant to subsection I of this section.
B. The compensation may be cash, in-kind compensation or a combination of cash and in-kind compensation.
C. In-kind compensation requires the agreement of both the provider and the department.
D. The department shall determine the present value of any in-kind compensation based on the incremental cost to the provider.
E. The value of in-kind compensation or a combination of cash and in-kind compensation shall be equal to or greater than the amount of cash compensation that would be charged if the compensation is cash only.
F. The department shall provide for the proportionate sharing of costs among the department and providers for joint trenching or trench sharing based on the amount of conduit innerduct space that is authorized in the agreement for the trench.
G. If two or more providers are required to share a single trench, each provider in the trench shall share the cost and benefits of the trench pursuant to subsection F of this section on a fair, reasonable, competitively neutral and nondiscriminatory basis.
H. The department, by rule, shall establish a schedule of rates of compensation for any longitudinal access granted under this section.
I. The department may not pay any cost of relocation of a private telecommunication facility granted longitudinal access to the right-of-way of a highway on the interstate system under this section.
J. The department shall deposit, pursuant to sections 35-146 and 35-147, monies collected pursuant to this section in the smart highway corridor trust fund established by section 28-7387.
K. Any telecommunications capacity acquired as in-kind compensation shall be used exclusively for the further development of telecommunications that serve state agencies and enhance connectivity for higher and public education and may not be sold or leased in competition with telecommunication or internet service providers.
L. A person may not use compensation paid to the department pursuant to this section as evidence of the market or other value of the access for any other purpose, including condemnation proceedings, other litigation, the application of rates of taxation or the establishment of franchise fees relating to longitudinal access rights.