86-5,105. Broadband facility agreement; purpose; contents; notice; electric utility easement; effect; claim for compensation; responsibility for payment; conditions on agreement.
(1) An electric utility and a commercial broadband supplier may enter into a broadband facility agreement for the use of an electric utility easement or electric utility infrastructure, or both, to:
(a) Install, maintain, or own, or permit any commercial broadband supplier to install, maintain, or own, an attached facility for operation by a commercial broadband supplier in providing commercial broadband service; and
(b) Lease or otherwise provide to a commercial broadband supplier any excess capacity of attached facilities for purposes of providing commercial broadband service.
(2)(a) A broadband facility agreement shall contain one of the following with respect to the use of any electric utility easement:
(i) A statement that the electric utility has the legal right to authorize the use of the electric utility easement for commercial broadband facilities;
(ii) A statement that the commercial broadband supplier has compensated property owners for the use of the electric utility easement for commercial broadband facilities pursuant to subsection (5) of this section; or
(iii) A statement that the electric utility has given notice to property owners pursuant to subdivision (2)(b) of this section and the time for making a claim has expired.
(b) Notice pursuant to this subsection shall:
(i) Be sent by certified mail from or on behalf of the electric utility to the property owner at each of the following, as applicable:
(A) The last-known address for the property owner based on the electric utility's records; and
(B) The address listed for the property owner in the records of the office of the county assessor;
(ii) Include the name, address, telephone number, and named point of contact for the electric utility and, if delivered by a commercial broadband supplier designated by the electric utility, the name, address, telephone number, and named point of contact for the designated commercial broadband supplier;
(iii) Include the recording number, if any, of the electric utility easement or recorded memorandum of the electric utility easement;
(iv) Include:
(A) A reference to the Broadband Internet Service Infrastructure Act; and
(B) A statement that the electric utility intends to enter into a broadband facility agreement, within ninety days after the notice is delivered, for the use of the electric utility easement with the commercial broadband supplier named in the notice;
(v) Give an estimated time for the start of installation or construction with regard to any new installation or construction that is to occur in connection with the broadband facility agreement; and
(vi) Include a statement regarding the statute of limitations for the property owner to file a claim with respect to the electric utility's exercise of action.
(3) The terms and conditions of a written electric utility easement apply to the use of the electric utility easement for commercial broadband facilities pursuant to a broadband facility agreement. A prohibition on aboveground electric utility infrastructure contained within a written electric utility easement constitutes a prohibition on aboveground attached facilities. An electric utility or its designated commercial broadband supplier shall comply with any notice requirements contained in a written electric utility easement held by the electric utility relating to entering the real property subject to the electric utility easement or commencing any construction or installation on the real property.
(4) Nothing in this section requires an electric utility to comply with subdivision (2)(b) of this section in order to take any action or exercise any rights under an electric utility easement that is already permitted within the scope of the electric utility easement. An electric utility easement shall be liberally construed in favor of its use for commercial broadband facilities pursuant to a broadband facility agreement.
(5) If, within ninety days after a notice pursuant to this section is sent by an electric utility or a designated commercial broadband supplier acting on the electric utility's behalf, a property owner submits a written claim for compensation relating to the use of an electric utility easement in connection with a broadband facility agreement, then the commercial broadband supplier, through communications handled by the electric utility, shall be responsible for the payment of compensation to the property owner for such claim, and the electric utility shall cooperate with the commercial broadband supplier in connection with the resolution of the claim.
(6) The electric utility shall not be required to enter into a broadband facility agreement until one of the following events occurs:
(a) The time period set forth in subsection (5) of this section has expired without a written claim from property owners of record;
(b) Any written claim for compensation by a property owner pursuant to this subsection has been resolved by a written instrument that shall be recorded with the register of deeds of the county where the electric utility easement is located; or
(c) The statute of limitations set forth in section 86-5,106 has expired.
(7) This section shall not apply to railroad right-of-way or electric utility easements in or to railroad right-of-way property. Crossings of railroad rights-of-way by telecommunications carriers are governed by section 86-164.
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