Fiber Optic Cable Facilities On Freeways

(1) Statement of Policy. (a) Notwithstanding any other rule or provision of Chapter 1680-6-1 to the contrary, it shall be the policy of the Department of Transportation to grant non-exclusive permits, on a competitively neutral and non-discriminatory basis, allowing the longitudinal installation of underground fiber optic cable lines and related facilities within the rights-of-way of freeways on the state highway system and/or federal interstate highway system, as provided in Section 54-16-112 of the Tennessee Code, and subject to this Rule. The installation of fiber optic cable facilities and other utilities that cross over or under freeways shall continue to be regulated in accordance with other provisions of this Chapter. (b) The Department of Transportation shall receive compensation for the use of freeway rights-of- way to install fiber optic cable facilities in accordance with the rate of compensation established by the Advisory Board under Section 54-16-112 of the Tennessee Code. The Department of Transportation may, at its option, accept monetary compensation or in-kind compensation, or both. Valuation of in-kind compensation shall be calculated in accordance with the method of valuation adopted by the Advisory Board. (2) Governing Law. (a) This Rule is promulgated under the authority of, and in compliance with, Section 54-16-112 of the Tennessee Code. (b) It is the intent of the Department of Transportation that this Rule shall be construed and administered in accordance with applicable provisions of the Federal Communications Act of 1934, 47 U.S.C. § 151, et seq. (c) The location and installation of fiber optic cable facilities on state freeway rights-of-way shall be governed by this Rule and, where applicable, by other provisions of this Chapter and the rules and regulations of the Federal Highway Administration with respect to the accommodation of utilities, 23 C.F.R. Part 645, Subpart B, as amended. (d) To the extent that the specific provisions of this Rule conflict with other provisions of Chapter 1680-6-1, the specific provisions of this Rule shall govern. (3) Definitions. (a) “Advisory Board” means the advisory board established under Section 54-16-112 of the Tennessee Code with the authority to establish the rate of compensation, and a method for the RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY valuation of in-kind compensation, for the use of state freeway rights-of-way to install underground fiber optic cable lines and related facilities. (b) “Clear Zone” when used in reference to the use of state freeway rights-of-way to install underground fiber optic cable facilities under this Rule means the roadside border area available for use by errant vehicles, starting from the edge of the traveled way and extending outward to a distance of not less than 30 feet. For administrative practicality, the Department will generally presume that the clear zone along a state freeway is 30 feet wide. In specific locations, however, the Department may determine that a wider clear zone is required in the interest of public safety, and in such cases the Department will establish the width of the clear zone based on the roadway design speed, average daily traffic and embankment slopes, as provided in the American Association of State Highway and Transportation Officials, Roadside Design Guide. (c) “Conduit” means a hollow tube or duct (of varying sizes) used to enclose innerducts for the underground installation of fiber optic cable. (d) “Innerduct” means a hollow, flexible tube (of varying sizes) used to enclose fiber optic cables for underground installation, and which may be enclosed within conduit. (e) “Longitudinal” means an installation that is parallel or nearly parallel to the alignment of the highway. (f) “Rural” when used in reference to the use of state freeway rights-of-way under this Rule means the right-of-way along any segment of a freeway that is not otherwise defined as “urban” or “suburban” under this Rule. (g) “State freeway” means all freeways within the State of Tennessee designated either as a state highway by the Department of Transportation or as a federal interstate highway. (h) “Suburban” when used in reference to the use of state freeway rights-of-way under this Rule means any of the following, unless the segment of freeway right-of-way is otherwise defined as “urban” under this Rule: 1. The right-of-way along any segment of state freeway within 10 miles outside the urban area boundary of a city having a population of 100,000 or more according to the most recent federal census; and/or 2. The right-of-way along any segment of state freeway within the urban area boundary of any city having a population of 20,000 or more according to the most recent federal census; provided, that where one side of the freeway is within the urban area boundary of such a city, the right-of-way along both sides of the freeway shall be considered suburban; and/or 3. The right-of-way along any state freeway that serves as a beltway around any part of a city having a population of 100,000 or more according to the most recent federal census where any part of such freeway is within 10 miles outside the urban area boundary of such city, including without limitation State Route 385 in Shelby County. (i) “Telecommunications company” means any public agency (not including any agency of the State of Tennessee), or any cooperative, corporation, partnership or individual named in the Use and Occupancy Agreement that may locate, install or maintain fiber optic cable facilities within the rights-of-way of state freeways. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY (j) “Term” means the duration of the Use and Occupancy Agreement under which a telecommunications company locates, installs and maintains fiber optic cable facilities within the rights-of-way of state freeways. (k) “Urban” when used in reference to the use of state freeway rights-of-way under this Rule means the right-of-way along any segment of a freeway within the urban area boundary of a city having a population of 100,000 or more according to the most recent federal census; provided, that where one side of the freeway is within the urban area of such a city, the right-of-way along both sides of the freeway shall be considered urban. (l) “Urban area boundary” for the purposes of this Rule means the boundary of the urbanized area of a city having a population of 20,000 or more according to the most recent federal census. These urban area boundaries are established by the Department of Transportation and the city in cooperation with one another, and subject to the approval of the United States Secretary of Transportation, in accordance with 23 U.S.C. § 101. (4) Use and Occupancy Agreement Requirements. (a) No telecommunications company shall be permitted to install underground fiber optic cable lines or related facilities within state freeway rights-of-way without first executing a Use and Occupancy Agreement. (b) Upon making application to the Department of Transportation for a Use and Occupancy Agreement under this Rule, the telecommunications company shall pay an application fee to the Department of Transportation for processing the application, reviewing plans, and other administrative services, but not including inspection services, which shall be separately charged as provided in Rule 1680-6-1-.04(10). The total amount of the required application fee shall include a base fee of $200 plus $10 for each mile of the proposed installation within state freeway rights-of-way. (c) Each Use and Occupancy Agreement for the longitudinal installation of fiber optic cable facilities within state freeway rights-of-way shall be subject to this Rule and specifically, but without limitation, to the following terms and conditions: 1. Right to Cross. The Department of Transportation reserves a perpetual right at any time to cross the underground fiber optic cable lines and related facilities for any purpose related to the construction, reconstruction, operation or maintenance of the highway as determined by the Department. 2. Assignment. The telecommunications company may not assign or transfer its rights or obligations under the Use and Occupancy Agreement to another telecommunications company or other entity or person without first giving written notice to, and obtaining the consent of, the Department of Transportation, which consent shall not be unreasonably withheld. 3. Indemnification and Hold Harmless. (i) The telecommunications company shall indemnify the State of Tennessee and the Department of Transportation, and their officers, employees and agents, and hold them harmless to the maximum extent allowed under Tennessee law for any and RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY all claims arising from the telecommunications company’s use of the freeway right-of-way to install, operate and/or maintain fiber optic cable facilities, including claims by third parties, and including attorneys’ fees and all other costs of preparing for and defending against such claims, regardless of any negligence or fault of the State of Tennessee or Department of Transportation. (ii) Without limiting the foregoing, the telecommunications company shall hold the State of Tennessee and Department of Transportation, and their officers, employees and agents, harmless, to the maximum extent allowed under Tennessee law, for any personal injury or property damage, including interruption of service or loss of business, incurred by the telecommunications company, or its officers, employees or agents, arising from the Department of Transportation’s construction, reconstruction, operation or maintenance of the freeway or freeway right-of-way, regardless of any negligence or fault of the State of Tennessee or Department of Transportation. 4. Insurance. The telecommunications company shall at all times have and maintain, and upon the request of the Department of Transportation shall provide written proof of, liability insurance policies containing, at a minimum, the following insurance coverage: (i) Commercial general liability insurance, in form and substance acceptable to the Department of Transportation. (ii) Commercial automobile liability insurance, in form and substance acceptable to the Department of Transportation, for all vehicles owned or used by the telecommunications company in any phase of the construction, installation, operation, maintenance or repair of its fiber optic cable facilities within the freeway right-of-way. (iii) All such liability insurance policies shall provide liability coverage sufficient, at a minimum, to match the State’s limits of liability under Section 9-8-307 of the Tennessee Code. These limits are currently set at $300,000 per claimant and $1,000,000 per occurrence, but they are subject to change without amendment of this Rule. (iv) All such liability insurance policies shall name the State of Tennessee and Department of Transportation each as an additional insured for the purposes of fulfilling the telecommunications company’s obligations under the Use and Occupancy Agreement, including without limitation any and all obligations to indemnify and hold harmless the State of Tennessee and Department of Transportation, and their officers, employees and agents. 5. Surety Bond. The telecommunications company shall furnish a surety bond, issued by a company licensed to do business in the State of Tennessee, and in such form and amount acceptable to the Department of Transportation, guaranteeing full and faithful performance of the terms and conditions of the Use and Occupancy Agreement, including without limitation the repair and restoration of the right-of-way premises, the payment of any monetary compensation remaining due to the Department for use of the RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY freeway right-of-way, and the completion of any installation of fiber optic facilities to be provided to the Department as compensation under the Use and Occupancy Agreement. 6. Relocation or Removal. (i) If, at any time, the Department of Transportation determines that any fiber optic cable facilities need to be relocated within, or removed from, the state freeway right-of-way for any reason related to the use, operation, maintenance, construction or reconstruction of the freeway, the telecommunications company shall relocate or remove the facilities as directed by written notice from the Department of Transportation. (ii) All such costs of relocation or removal, including the cost of relocating any part of the fiber optic cable facilities reserved to the Department of Transportation under the Use and Occupancy Agreement, shall be borne by the telecommunications company and not by the Department, except as the Department may otherwise agree in accordance with a special condition of the Use and Occupancy Agreement executed prior to the installation, or as the Department may subsequently agree in writing under a utility relocation contract. (iii) The telecommunications company shall complete the relocation or removal within such time as the Department of Transportation shall specify by written notice, or within such additional time as the Department of Transportation may authorize in writing. Upon the failure of the telecommunications company to relocate or remove the fiber optic cable facilities within the specified time, or such additional time as the Department may authorize in writing, the fiber optic cable facilities shall be deemed to be abandoned by the telecommunications company, and the Department of Transportation shall be deemed the owner thereof; provided, however, that the Department of Transportation, in its sole discretion, may refuse ownership of the abandoned fiber optic cable facilities at any time within one year after the abandonment and thereupon hold the telecommunications company liable for the costs of removing such facilities from the state freeway right-of-way. (iv) To the extent that the telecommunications company is required to remove fiber optic cable facilities from the state freeway right-of-way, the telecommunications company shall to that extent be relieved of any further obligation under the Use and Occupancy Agreement to compensate the Department for the use of the state freeway right-of-way. To the extent that the telecommunications company is allowed to relocate fiber optic cable facilities to another location within the freeway right-of-way, the telecommunications company may elect either to remain under the terms of compensation specified in the Use and Occupancy Agreement, or the telecommunications company may choose to enter into a new Use and Occupancy Agreement for the new location. (5) Duration and Renewal of Use and Occupancy Agreements. (a) Term Options. The Use and Occupancy Agreement for the longitudinal installation of fiber optic facilities within state freeway rights-of-way shall have an initial term of 10 years, 20 years, 30 years, or 40 years, at the option of the telecommunications company. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY (b) Renewal Options. Upon the expiration of the initial term of the Use and Occupancy Agreement, the telecommunications company shall have an option to renew the Use and Occupancy Agreement for a term of 10 years, 20 years, or 30 years, subject to the applicable rate of compensation established by the Advisory Board as of the date of renewal; provided that the initial term and any successive renewal terms shall not exceed a combined total of 40 years. (6) Compensation. (a) Compensation Requirement. 1. No telecommunications company shall be permitted to install underground fiber optic cable lines or related facilities longitudinally within state freeway rights-of-way except upon the payment of compensation for the use of such rights-of-way, as provided in Section 54-16-112 of the Tennessee Code. 2. The Department of Transportation, at its option, may receive the compensation for use of state freeway rights-of-way in the form of money or as in-kind compensation in the form of telecommunications facilities or services, or both. (b) Rate and Method of Compensation. 1. The rate of compensation and the method of valuation for in-kind compensation shall be as established by the Advisory Board. As established by the Advisory Board, the rate of compensation varies according to the type of state freeway right-of-way (urban, suburban or rural) in which the fiber optic cable facilities are located, and a surcharge shall be added to the applicable rate of compensation where the fiber optic cable facilities are located within the clear zone. 2. The current rate structure and method of valuation for in-kind compensation are set forth in the Rate Sheet reproduced in the Appendix to this Rule at Paragraph (12). This Rate Sheet may be amended by the Advisory Board, as provided in Section 54-16-112 of the Tennessee Code, without amendment of this Rule. (c) Total Amount of Compensation. The total amount of compensation due for use of the right-of-way shall be fixed as of the date of execution of the Use and Occupancy Agreement, in accordance with the rate and method of valuation of in-kind compensation established by the Advisory Board at that time, and in accordance with the type of right-of-way, the method of remittance and the term of the Use and Occupancy Agreement selected by the telecommunications company. (d) Unit Measure of Compensation. 1. There shall be a separate charge for each innerduct containing fiber optic cable that a telecommunications company installs in the right-of-way or for each fiber optic cable buried in the right-of-way without an innerduct, except that there shall be no charge for any innerduct or fiber optic cable provided to the Department of Transportation as in- kind compensation. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY 2. The minimum charge for each such innerduct or cable shall be based on the rate of compensation established by the Advisory Board for a one and one-quarter inch (1¼”) innerduct. 3. The charge for larger innerduct or cable shall be calculated on a pro rata basis. For example, the charge for a two and one-half inch (2½”) innerduct shall be twice the charge for a one and one-quarter inch (1¼”) innerduct. (e) Empty Innerduct. 1. There shall be no charge for empty innerduct or conduit installed vertically within the same trench line along the state freeway right-of-way in accordance with a Use and Occupancy Agreement; provided, however, that each separate trench line shall require a Use and Occupancy Agreement and shall be subject to a minimum charge based on the rate of compensation for a one and one-quarter inch (1¼”) innerduct. 2. The installation of fiber optic cable in an empty innerduct or conduit shall not be permitted except upon the execution of a new Use and Occupancy Agreement. Compensation for the installation of fiber optic cable in such empty innerduct or conduit shall be fixed on the date of execution of the new Use and Occupancy Agreement, in accordance with the applicable rate and method of valuation for in-kind compensation established by the Advisory Board at that time. (f) In-Kind Compensation. If the Department of Transportation chooses to receive in-kind compensation under a Use and Occupancy Agreement, it shall provide the telecommunications company with a list of the specific telecommunications facilities and/or services that it wishes to obtain. The value of such in-kind compensation, as determined in accordance with the method of valuation established by the Advisory Board, shall be subtracted from the total amount of monetary compensation due for use of the right-of-way and the remaining balance, if any, shall be remitted as monetary compensation. (7) General Installation Policies. (a) Timing of Installations. To minimize interference with the safe use, operation and maintenance of the freeway, and as reasonably necessary to manage the right-of-way, the Department of Transportation may limit the timing of access so that, to the extent possible, there is no more than one fiber optic cable installation project underway at any given time on any particular segment of a state freeway. (b) Minimum Installation. In order to preserve the availability and efficient use of freeway rights-of-way, and as reasonably necessary to manage such rights-of-way, the Department of Transportation, as a general rule, will not permit fiber optic cable installations of less than a total length of twenty- five (25) miles along any state freeway or combination of state freeways. Exceptions may be considered on a case-by-case basis. (8) Location and Alignment Criteria. (a) General Location Policy. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY To minimize interference with the safe use, operation and maintenance of the freeway, longitudinal installations of fiber optic cable facilities shall be located outside the clear zone and as near to the outer edge of the right-of-way line as is reasonably practical; provided, however, that alternative locations within the right-of-way, including the clear zone, may be permitted where the Department of Transportation determines that it is not reasonably practical to locate the fiber optic cable facility along the outer edge of the right-of-way and that the use of the alternative location is consistent with the Department’s goal to minimize interference with the safe use, operation and maintenance of the freeway. (b) Horizontal Clearance. As a general rule, subsequent installations of underground fiber optic cable facilities outside the clear zone shall be located not less than five feet (5’) from any previously installed underground fiber optic cable line or other utility installation, if any, within the freeway right-of-way. Exceptions may be considered on a case-by-case basis and as may be reasonably necessary to manage the state freeway right-of-way. (c) Depth. All underground fiber optic cable lines shall be located and installed in accordance with the minimum depths established in Paragraph 1680-6-1-.06(2) of this Chapter, as amended, or at such greater depths as the Department of Transportation may require as a special condition of the Use and Occupancy Agreement. (d) Access Points. Devices for accessing underground fiber optic cable facilities for routine service or site visits shall not be allowed within the clear zone of the freeway, except as the Department of Transportation may otherwise expressly permit or require. (e) Support Facilities. All above-ground support facilities for underground fiber optic cable lines shall be located outside the clear zone and as near to the outer edge of the right-of-way line as is reasonably practical. No above-ground facility may be located on the freeway right-of-way without the express written approval of the Department of Transportation, and preference will be given to locations at interchanges, rest areas and welcome centers, weigh stations, and highway crossings. (f) Attachment to Freeway Structures. The attachment of fiber optic cable facilities to freeway structures ─ including without limitation bridges, overpasses, underpasses, culverts and tunnels ─ shall be permitted only with the prior written approval of the Director of the Structures Division, in accordance with Rule 1680-6-1-.05. (g) Service Connections. Service connections to adjacent properties shall not be permitted from fiber optic cable installations within the access control limits of the freeway right-of-way, except at interchanges or other locations approved in writing by the Department of Transportation. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY (9) Clear Zone Considerations. (a) General Clear Zone Location Policy. The installation of fiber optic cable facilities may be permitted within the clear zone of a state freeway under special circumstances where the Department of Transportation determines that it is not reasonably practical to locate the fiber optic cable facility outside the clear zone and that the installation of fiber optic cable facilities within the clear zone may be done in a manner that is consistent with the Department’s goal to minimize interference with the safe use, operation and maintenance of the freeway. (b) Limitation of Installations Within the Clear Zone. In order to minimize interference with the safe use, operation and maintenance of the freeway, and as reasonably necessary to manage the right-of-way, the Department of Transportation reserves the right to restrict the total number of installations within the clear zone to no more than one installation on any particular segment of a state freeway. (c) Clear Zone Installation Terms and Conditions. A telecommunications company requesting permission for the longitudinal installation of fiber optic cable facilities within the clear zone of a state freeway may be required to comply with the following terms and conditions, without limitation as to such additional terms and conditions as may be included in the Use and Occupancy Agreement: 1. The telecommunications company may be required to provide other telecommunications companies with reasonable notice of the anticipated or planned opening of the right-of- way within the clear zone. (i) The notice period should provide such time as another telecommunications company may reasonably require to develop business plans and obtain financing in order to participate in the installation of fiber optic cable facilities during the anticipated or planned opening of the right-of-way within the clear zone, and in any event the notice period should not be less than 60 days. (ii) The required notice may be accomplished through the publication of a notice of the proposed project, including the anticipated construction schedule, for three consecutive days in a newspaper of general circulation within the area of the project, and by the mailing of such notice to all incumbent local exchange carriers (ILECs) within the area of the project, to all facilities-based competitive local exchange carriers (CLECs) and interexchange carriers (IXCs) certified by the Tennessee Regulatory Authority, and to such other potentially interested parties as the Department of Transportation may direct. 2. The telecommunications company may be required to install spare fiber cable lines, empty innerducts, and/or empty conduit sufficient to accommodate reasonably anticipated future demand. 3. For each section of fiber, empty innerduct or empty conduit within the clear zone, the telecommunications company may be required to install connection points (manhole or cabinets) outside the clear zone, or elsewhere as the Department of Transportation may direct, where other telecommunications companies may, at their option, access or interconnect with these facilities. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY 4. The rates, terms and conditions for interconnection with facilities and/or the use of empty innerduct or conduit space within the clear zone should be fair, reasonable and non- discriminatory, but may include a reasonable profit, in accordance with applicable regulations and guidelines of the Federal Communications Commission and/or Tennessee Regulatory Authority. 5. The telecommunications company may be required to make fiber available for sale to other telecommunications companies on an “irrevocable right to use” basis at such rates and upon such terms and conditions as are fair, reasonable and non-discriminatory, but which may include a reasonable profit, in accordance with applicable regulations and guidelines of the Federal Communications Commission and/or Tennessee Regulatory Authority. 6. The telecommunications company may be required to offer facilities and services for resale at such rates and upon such terms and conditions as are fair, reasonable and non- discriminatory, but which may include a reasonable profit, in accordance with applicable regulations and guidelines of the Federal Communications Commission and/or Tennessee Regulatory Authority. 7. If the telecommunications company provides retail telecommunications service, either directly or through an affiliated entity, it may be required to provide such services at such rates, terms and conditions as are fair, reasonable and non-discriminatory, in accordance with applicable regulations and guidelines of the Federal Communications Commission and/or Tennessee Regulatory Authority. (10) Installation and Maintenance Requirements. (a) General Standards of Care. 1. The telecommunications company shall take care not to install any fiber optic cable facility in such a manner as to create a potential hazard to life, health or property or in such a manner as to impair the use, operation and maintenance of the freeway. 2. The telecommunications company shall cooperate with the Department of Transportation to identify locations for fiber optic cable facilities within the freeway right-of-way that will, to the extent it is reasonably practical, minimize any potential conflict with the future expansion or reconstruction of the freeway. The telecommunications company shall also take care to install all fiber optic cable facilities in such manner as to require only minimal maintenance within the freeway right-of-way after installation. (b) Tennessee One-Call Service. The telecommunications company shall comply with the Tennessee One-Call Service as provided in Section 65-31-107 of the Tennessee Code, or as it may be amended. (c) Permits and Approvals. The telecommunications company shall be responsible for obtaining all approvals and/or permits that may be required for activities authorized under this Rule, including without limitation all environmental permits and federal regulatory approvals or permits, if applicable. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY (d) Minimum Installation and Maintenance Controls. The following minimum controls shall apply to the installation, servicing and maintenance of all fiber optic cable facilities within state freeway rights-of-way, in addition to such other requirements as the Department of Transportation may provide as a general or special condition of the Use and Occupancy Agreement: 1. Installation and Maintenance Plan. Before commencing any installation, servicing or maintenance of a fiber optic cable facility, the telecommunications company shall submit an installation and maintenance plan to the Department of Transportation for review and approval, and upon approval such plan shall be made a part of the Use and Occupancy Agreement. At a minimum, the installation and maintenance plan shall specify: (i) The location and method of installing each part of the fiber optic cable facility within the right-of-way; (ii) The means by which access to and within the right-of-way shall be accomplished for the purpose of installing, servicing and maintaining each part of the fiber optic cable facility, including provisions for ingress and egress, parking of vehicles and equipment, and storage of materials; (iii) The means by which the telecommunications company will provide for the control of traffic on the freeway, if needed, in the course of installing, servicing or maintaining any part of the fiber optic cable facility; (iv) The schedule for completing the installation of the fiber optic cable facility, or parts thereof, within the right-of-way; and (v) The procedure by which the telecommunications company will conduct emergency maintenance operations within the right-of-way. 2. Preservation of Pavement Structure. Open cutting or trenching of the freeway’s pavement structure, including without limitation the traveled way, shoulders and access ramps, shall not be permitted. Wherever the Department of Transportation permits a crossing of the freeway pavement structure in accordance with this Rule, the crossing shall be accomplished by boring or other untrenched method as approved by the Department. 3. Blasting. When blasting is necessary, the telecommunications company shall follow the guidelines established in Rule 1680-6-1-.07. 4. Access to Right-of-Way for Installation and Maintenance. (i) As far as it is reasonably practical, all fiber optic cable facilities should be designed and located in such a manner that they can be installed, serviced and maintained without direct access thereto from the traveled way, access ramps or shoulders of the freeway. Such direct access may be permitted in special RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY circumstances where there is no reasonably practical alternative means of access and the telecommunications company has made adequate provisions for controlling access to the work zone, directing traffic, and protecting the safety of workers and the traveling public, as specified in the installation and maintenance plan approved by the Department of Transportation. (ii) Except as may be permitted under special circumstances as described above, access to the freeway right-of-way for the installation, servicing or maintenance of fiber optic cable facilities shall be limited to: (I) Frontage roads, where available; (II) Adjacent or nearby public roads and streets; (III) Trails along or near the freeway right-of-way line that connect only to an intersecting road; or (IV) Adjacent private property behind the access control fence. (iii) In every case where the Department of Transportation has permitted a temporary break in the access control fence under this Part, the telecommunications company shall have the responsibility to maintain control of access to the state freeway right-of-way as specified in the installation and maintenance plan approved by the Department. Upon completion of the fiber optic cable facility installation in any part of the freeway where a temporary break in access control has been permitted, the telecommunications company shall promptly restore the access control fence as specified by the Department. 5. Parking of Vehicles. The telecommunications company shall not be permitted to park vehicles and equipment or to store materials on the freeway right-of-way without express prior approval by the Department of Transportation. In no case shall the telecommunications company be permitted to park vehicles and equipment or store materials within the clear zone of the freeway, except as may be required during actual installation operations within the clear zone and while all required traffic control is present and in place. 6. Traffic Control. (i) All traffic control signs or other traffic control devices that the telecommunications company may use in the course of any installation, servicing or maintenance of a fiber optic cable facility shall comply with the provisions of Chapter 1680-6-1 and the Manual on Uniform Traffic Control Devices, as adopted in Chapter 1680-3-1. (ii) In addition, the telecommunications company shall arrange for law enforcement officers having appropriate enforcement authority to be present to ensure the safe flow of traffic whenever any installation, servicing or maintenance of a fiber optic cable facility occurs within the clear zone of the freeway or as may be required in the installation and maintenance plan approved by the Department of Transportation where access to the work zone has been permitted from the traveled way, shoulders or access ramps of the freeway. The telecommunications RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY company may not conduct any such work within the right-of-way without giving specific advance notice thereof to the Department of Transportation. 7. Advance Notice of Installation or Maintenance Work. Before performing any non-emergency servicing or maintenance of a fiber optic cable facility at any location within the freeway right-of-way and before performing any installation of a fiber optic cable facility within the clear zone or where access to the utility work zone has been permitted from the traveled way, shoulders or access ramps of the freeway, the telecommunications company shall give at least five (5) work days advance notice thereof to the Regional Director of the Department of Transportation Region in which the work is to be performed. 8. Emergency Maintenance or Repair. The telecommunications company shall notify the appropriate Regional Director of the Department of Transportation as soon as possible, and in any event not more than twenty-four (24) hours, after the occurrence of an event requiring emergency maintenance or repair of a fiber optic cable facility within the freeway right-of-way, or as otherwise specified in the installation and maintenance plan approved by the Department. (e) Cessation of Work for Public Safety. If the telecommunications company fails to comply with the traffic control plan or any other provision of the installation and maintenance plan, or if any activity of the telecommunications company within the freeway right-of-way interferes with the safe and efficient use of the freeway as determined by the Department of Transportation, the telecommunications company shall immediately cease such activity upon notice being given by the Department, and the telecommunications company shall thereafter work with the Department to bring its activities into compliance with the installation and maintenance plan and/or implement such additional safety requirements as may be specified by the Department. (f) Ecological, Historical and Archaeological Considerations. If at any time during the installation of fiber optic cable facilities within the freeway right-of- way the telecommunications company encounters an area having ecological, historical or archaeological significance under federal or state law, the telecommunications company shall immediately notify the Department of Transportation and cease installation operations in that area until receiving further instructions from the Department of Transportation. (g) Trees. The cutting or removal of trees along the freeway right-of-way shall not be permitted without the express approval of the Department of Transportation. (h) Hazardous Substances. The telecommunications company shall not place, install or deposit any hazardous substance or hazardous waste within or on any part of the state freeway or state freeway right-of-way. If at any time the telecommunications company causes or allows a spill of a hazardous waste or substance within the freeway right-of-way, the telecommunications company shall remain solely liable for the clean-up and removal of such hazardous waste or substance. The telecommunications company shall indemnify the State of Tennessee and Department of RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY Transportation, and their officers, employees and agents, and shall hold them harmless against any and all claims or expenses of any kind related to the deposit, spillage and/or clean-up of any such hazardous wastes or substances. (i) Installation of Access Points for the Department of Transportation. Where the Department of Transportation requests in-kind compensation for the use of state freeway rights-of-way in accordance with Section 54-16-112 of the Tennessee Code and this Rule, the telecommunications company shall provide pull boxes, splice boxes and/or other access points at such intervals and locations as the Department of Transportation may require. Covers for such access points shall be traffic rated in accordance with the requirements of the Department of Transportation’s Standard Specifications for Road and Bridge Construction, and each cover shall be marked to identify it as a fiber optic cable facility. (j) Inspection. All work performed within state freeway right-of-way or otherwise on state property, including without limitation any work performed for the Department of Transportation, shall be subject to inspection by the Department. The Department shall have the authority to reject substandard work or materials and/or to suspend or stop work, in whole or part, where the telecommunications company fails to comply with any requirement of this Rule or the Use and Occupancy Agreement, or where any unsafe or hazardous condition exists. (k) Above-Ground Markers. The telecommunications company shall install permanent above-ground markers indicating the location of its underground fiber optic cable facilities at such intervals as the Department of Transportation may approve or require in the installation and maintenance plan. These markers shall not interfere with the safe use, operation and maintenance of the freeway, nor shall they constitute a hazard to the traveling public. (l) Repair and Restoration of Premises. 1. The telecommunications company shall, as directed by and in a manner satisfactory to the Department of Transportation, promptly replace or repair any portion of the pavement, shoulders, structures, ramps, guardrail, drainage, or any other part of the freeway that may have been damaged in the course of any work within the state freeway right-of-way. 2. Upon the completion of any installation, replacement, repair or relocation of fiber optic cable facilities within the state freeway rights-of-way, the telecommunications company shall promptly restore the premises to a condition similar to that which existed prior to such work, in a manner satisfactory to the Department of Transportation. 3. The telecommunications company shall remain responsible for maintaining any excavation or trench on or along the state freeway right-of-way, as directed by and in a manner satisfactory to the Department of Transportation. (m) As-Built Drawings. “As-built” drawings of all underground and aboveground fiber optic cable facilities located on the state freeway right-of-way shall be submitted to the Department of Transportation upon completion of any installation or relocation. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY (11) Compliance and Revocation. (a) In the event that the Department of Transportation determines that the telecommunications company is in violation of any provision of this Rule or the Use and Occupancy Agreement, the Department of Transportation may order the telecommunications company to comply. (b) In any case not presenting any imminent threat to public safety, as determined by the Department of Transportation, the telecommunications company shall be given thirty (30) days, or such other reasonable time as the Department may provide, within which to correct the noncompliance. (c) In any case presenting an imminent threat to public safety, as determined by the Department of Transportation, the telecommunications company shall correct the noncompliance promptly as directed by the Department. (d) If the telecommunications company fails to comply with any order or directive given by the Department of Transportation under this Paragraph, the Department of Transportation may revoke the Use and Occupancy Agreement, after such notice and opportunity for hearing, if any, as may be required by law. (e) The telecommunications company shall not be entitled to any compensation or reimbursement of expenses in the event of such revocation of the Use and Occupancy Agreement. (f) Upon the revocation of the Use an Occupancy Agreement, the telecommunications company shall promptly remove any fiber optic cable facilities within the state freeway right-of-way, in such manner and within such time as the Department of Transportation may direct. If the telecommunications company fails to remove the fiber optic cable facilities within the time directed, the fiber optic cable facilities shall be deemed to be abandoned by the telecommunications company, and the Department of Transportation shall be deemed the owner thereof; provided, however, that the Department of Transportation, in its sole discretion, may refuse ownership of the abandoned fiber optic cable facilities at any time within one year after the abandonment and thereupon hold the telecommunications company liable for the costs of removing such facilities from the freeway right-of-way. RULES AND REGULATIONS FOR ACCOMMODATING UTILITIES CHAPTER 1680-6-1 WITHIN HIGHWAY RIGHTS-OF-WAY (12) Appendix: Rate Sheet Adopted by the Advisory Board. Rate Sheet Underground Fiber Optic Facilities Advisory Board The Advisory Board hereby adopts the following fair, reasonable and nondiscriminatory rate of compensation for access to controlled-access highway right-of-way, and method of valuation of in-kind compensation in accordance with Section 54-16-112 of the Tennessee Code: Minimum Underlying Urban/Suburban/Rural Rates Type of Right-of-Way Annual Per Mile Rate Urban $1,500 per 1 ¼ inch innerduct (or equivalent) Suburban $1,000 per 1 ¼ inch innerduct (or equivalent) Rural $500 per 1 ¼ inch innerduct (or equivalent) Minimum Underlying Clear Zone Rate Type of Right-of-Way Annual Per Mile Surcharge All Areas $4,000, per trench The Advisory Board hereby adopts the following rates, developed from the above underlying rates, plus a 3% inflation factor for the annual remittance option, or for the up-front remittance options, based on a 5% rate of discount. Up-front verses Annual Remittance Options Per 1 ¼ inch innerduct (or equivalent), per mile Type of Right- of-Way Annual Up-front for 10 year term Up-front for 20 year term Up-front for 30 year term Up-front for 40 year term Urban $1,500 + 3% inflation factor compounded (starting yr. two) $12,162 $19,628 $24,212 $27,026 Suburban $1,000 + 3% inflation factor compounded (starting yr. two) $8,108 $13,085 $16,141 $18,017 Rural $500 + 3% inflation factor compounded (starting yr. two) $4,054 $6,543 $8,071 $9,009 Clear Zone (per trench) $4,000 + 3% inflation factor compounded (starting yr. two) $32,431 $52,341 $64,564 $72,068 The Advisory Board hereby adopts an annual increase of the per mile rates listed above by the actual percentage rate of inflation as measured by the Consumer Price Index (CPI). This factor will be applied to all contracts seeking access to the controlled-access highway right-of-way after 2002, and every year thereafter, until the Advisory Board establishes a new rate of compensation. The Advisory Board hereby adopts the incremental cost valuation methodology, as described in the Summary Report submitted by the Department of Transportation, dated November 30, 2001, for the valuation of in-kind compensation. This Rate Sheet is hereby adopted, in its entirety, by majority vote of the Advisory Board members present and entitled to vote. ______________________________________ Justin Wilson, Chairman of the Advisory Board Dated: January 7, 2002