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Engrossed Version House Bill 3059 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2023 regular session

ENGROSSED

Committee Substitute

for

House Bill 3059

By Delegates Reynolds, Dean, Bridges, Linville, Worrell, Willis, Honaker, Zatezalo, Barnhart, Burkhammer and Holstein

[Introduced January 25, 2023; Referred to the Committee on Technology and Infrastructure]

 

A BILL to amend and reenact §31-2A-2 of the Code of West Virginia, 1931, as amended; and to amend said Code by adding thereto a new article, designated §24-2G-1, §24-2G-2, §24-2G-3, §24-2G-4, §24-2G-5, §24-2G-6, §24-2G-7, §24-2G-8, §24-2G-9, §24-2G-10, §24-2G-11, §24-2G-12, §24-2G-13, §24-2G-14, §24-2G-15, §24-2G-16, §24-2G-17, §24-2G-18, and §24-2G-19; and to amend said Code by adding thereto a new section designated as §54-1-9a, all relating to railroads; relating to railroad administration powers of the Public Service Commission; providing a definition; clarifying regulation of service applicable to railroads; providing exceptions; allowing for inquiries into management of railroads and investigation into violations of interstate commerce law; allowing for inquiries into neglect or violations of law; authorizing examinations and production of books and papers; providing for forfeiture for refusal to comply with subpoena; requiring annual statement to commission and identification of officers and directors; providing a prohibition against directing a violation of law; creating a duty to provide adequate service and facilities; directing that charges conform to schedule; requiring maintenance of depots, switches, and sidetracks; recognizing commission's authority over private tracks; prohibiting unlawful preference; prohibiting violations of article; providing rulemaking authority; requiring railroad companies to provide alternative entry and exit ways in certain circumstances; regulating fiber optic broadband lines crossing railroads; legislative findings and purpose; definitions; notice of intent to cross; conditions of crossing; one-time standard cumulative crossing fee; flagging expenses; crossing within another public right of way; crossing abandoned track; petition by railroad to circuit court for relief; petition by broadband provider for relief; and broadband provider crossing of state property that is crossed by a railroad or property managed by the state that is crossed by a railroad.

Be it enacted by the Legislature of West Virginia:

CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 2G. PUBLIC SERVICE COMMISSION – RAILROAD POWERS.

§24-2G-1. Definition.

 

Notwithstanding any other provision of code to the contrary, the following definition shall apply to this article:

"Railroad"  includes any corporation, company, individual, or association of individuals, or its lessees, trustees, or receivers appointed by a court, which owns, operates, manages, or controls a railroad or part of a railroad as a common carrier in this state, or which owns, operates, manages, or controls any cars or other equipment used on such a railroad, or which owns, operates, manages, or controls any bridges, terminals, union depots, sidetracks, docks, wharves, or storage elevators used in connection with such a railroad, whether owned by such railroad or otherwise, and means and includes express companies, water transportation companies, freight-line companies, sleeping car companies, and interurban railroad companies, and all persons and association of persons, whether incorporated or not, operating such  agencies for public use in the conveyance of persons or property within this state.  

§24-2G-2. Regulation of service applicable to railroads.

 

(a) Regulation of service applicable to railroads shall include:

(1) The transportation of passengers and property between points within the state;

(2) The receiving, switching, delivering, storing, and handling of such property;

(3) All charges connected with this section of code, including icing charges and mileage charges;

(4) All railroad companies, sleeping car companies, equipment companies, express companies, car companies, freight and freight-line companies, and all associations of persons, incorporated or otherwise, which do business as common carriers, upon or over a line of railroad within this state;

(5) A common carrier engaged in the transportation of passengers or property wholly by rail, partly by rail and partly by water, or wholly by water;

(6) The regulation of all other duties, services, practices, and charges of the railroad company, incident to the shipping and receiving of freight, which are proper subjects of regulation.

(7) Such regulation shall not include or apply to the regulation of commerce with foreign nations, commerce among the several states, and commerce with the Indian tribes.

§24-2G-3. Exceptions.

 

This article does not apply to street and electric railways engaged solely in the transportation of passengers within the limits of cities, or to other private railroads not doing business as common carriers.

§24-2G-4. Inquiry into management of railroads.

 

The Public Service Commission ("commission") may inquire into the management of the business of any railroad, and shall keep itself informed as to the manner and method in which it is conducted. It may obtain from a railroad the information necessary to enable it to perform the duties and carry out the objects for which it was created.

§24-2G-5. Inquiry into neglect or violations of laws.

 

(a) The commission shall inquire into any neglect or violation of the laws of this state by a railroad doing business in this state, by its officers, agents, or employees, or by any person operating a railroad. The commission shall enforce this article, as well as other laws relating to railroads, and report violations thereof to the attorney general.

(b) If, upon complaint or otherwise, the commission has reason to believe that a railroad or any officer, agent, or employee of a railroad has violated or is violating any law of this state, or if it has reason to believe that differences have arisen between citizens of the state and any railroad operating as a common carrier within this state, it shall examine the matter.

§24-2G-6. Power of commission to regulate in cases not designated.

 

If, after hearing and investigation under this chapter, the commission finds any charges, regulation, or practice affecting the intrastate transportation of passengers or property, or any service in connection therewith, not specifically designated, unreasonable or unjustly discriminatory, it shall by order fix reasonable charges, regulation or practice in lieu of those found to be unreasonable or unjustly discriminatory.

§24-2G-7. Commission may make examinations.

 

Upon demand, the commission or any commissioner, or any person employed by the commission for that purpose, may inspect the books and papers of a railroad and examine under oath any officer, agent, or employee of a railroad, in relation to any matter which is the subject of complaint and investigation.

§24-2G-8. Commission may require production of books and papers.

 

By order or subpoena served on a railroad, the commission may require, at such time and place within this state as it designates, the production of books, papers, or accounts relating to any matter which is the subject of complaint or investigation, kept by such railroad in any office or place outside of this state, or verified copies thereof, in order that an examination of such books, papers, or accounts may be made by the commission or under its direction

§24-2G-9. Forfeiture for refusal to comply with subpoena.

 

A railroad, or any officer or agent of a railroad, that fails or refuses to comply within a reasonable time with an order or subpoena from the commission issued under this article shall be subject to the penalties set forth in 24-4-1 et seq.

§24-2G-10. Annual statement under oath to commission.

 

Every railroad company, incorporated or doing business in this state, shall file with the Public Service Commission a full and true statement of the affairs of such railroad relative to this state, covering the yearly period fixed by the commission. Such statement shall be made under oath of the proper officers of such company and shall be similar in character and detail to the annual report required to be made by railroad companies to the National Surface Transportation Board. [If any such report is defective or erroneous, the Public Service Commission may order it to be amended within a prescribed time. Such annual reports shall be preserved in the office of the commission, which commission may require specific answers to questions upon which it desires information.

§24-2G-11. List of officers and directors.

 

Within 30 days after the election of the directors of a railroad doing business in the state, the railroad shall forward to the commission a list of the officers and directors thereof, giving the place of residence and post-office address of each. If a change occurs in the organization of the officers or board of directors of a railroad, the railroad shall notify the commission of such change and the residence and post-office address of each of the officers and directors within 30 days of such change.

§24-2G-12. Prohibition against directing violation.

 

No railroad shall, by itself or by a general officer thereof, by direction, instruction, or request, cause an officer, agent, or employee of such railroad to violate this article or any state law.

§24-2G-13. Adequate service and facilities.

 

Each railroad shall furnish reasonably adequate service and facilities. The charges made for any service rendered or to be rendered in the transportation of passengers or property, for any service in connection therewith, or for the receiving, switching, delivering, storing, or handling of such property, shall be reasonable and just. Every unjust and unreasonable charge for such service is prohibited.

§24-2G-14. Charges shall conform to schedule.

 

No railroad shall charge, demand, collect, or receive a greater or less compensation for the intrastate transportation of passengers or property, or for any service in connection therewith, than is specified in the printed schedules filed with the Federal Railroad Administration or the Surface Transportation Board, including schedules of joint rates, as being then in force.  The rates, fares, and charges named in such schedules shall be the lawful rates, fares, and charges until they are changed as provided in this article.

§24-2G-15. Depots, switches, and sidetracks.

 

Each railroad shall provide and maintain adequate depots and depot buildings at its regular stations for the accommodation of passengers. Such depot buildings shall be kept clean, well-lighted, and warmed, for the comfort and accommodation of the traveling public. Each railroad shall provide and maintain adequate and suitable freight depots, buildings, switches, and sidetracks for receiving, handling, and delivering freight, transported or to be transported by such railroad.

 

§24-2G-16. Control over private tracks.

The Public Service Commission has the same control over private tracks, so far as such tracks are used by common carriers in connection with a railroad for the transportation of freight, as it has over the tracks of such railroad.

§24-2G-17. Unlawful preference.

 

No common carrier subject to the provisions of this article shall make or give undue or unreasonable preference or advantage to a particular person, company, firm, corporation, or locality, or to any particular description of traffic, or subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect.

§24-2G-18. Violation.

 

No officer, agent, or employee in an official capacity of a public utility or railroad shall knowingly violate this article, or willfully fail to comply with any lawful order or direction of the Public Service Commission made with respect to any public utility or railroad. Each day's continuance of such failure is a separate offense.

§24-2G-19. Commission authority to issue General Orders.

 

The Public Service Commission may issue General Orders as required to administer any provision of this article.

§24-2G-20.  Penalties.

(a) A railroad operator may be subject to a fine or civil penalty in accordance with subsection (b) of this section, upon a determination by the commission or by a court that the railroad operator has failed to substantially comply with the provisions of this article or rules or orders prescribed by the commission.

(b) The commission may fine or obtain civil penalties against a railroad operator for each violation of subsection (a) of this section, in an amount not less than $100 nor more than $1000 for each such violation.  Any penalty assessed under this section is in addition to any other costs, expenses, or payments for which the railroad operator is responsible under the other provisions of this section.

(c) In addition to fines and civil penalties, the commission may determine and declare and by order require that for violation of the provisions of subsection (a) of this section, the railroad operator must comply with the requirements of this article or orders prescribed by the Commission.

CHAPTER 31. CORPORATIONS.

ARTICLE 2A. RAILROAD CROSSING.

§31-2A-2. Blocking of crossing prohibited; time limit.

(a) It is unlawful for any railroad company, except in an emergency, to order, allow or permit the operation of or to operate or to so operate its system so that a train blocks the passage of vehicular traffic over the railroad crossing of any public street, road or highway of this state for a period longer than ten minutes. This section does not apply to an obstruction of any such street, road or highway caused by a continuously moving train or caused by circumstances wholly beyond the control of the railroad, but does apply to all other obstructions as aforesaid, including, but not limited to, those caused by a stopped train or a train engaged in switching, loading or unloading operations: Provided, That if any such train is within the jurisdictional limits of any municipality which now has or hereafter shall have in force and effect an ordinance limiting the time a railroad crossing may be blocked by a train, such ordinance shall govern, and the provisions of this article shall not be applicable.

(b) Upon receiving notification from a law-enforcement officer, member of a fire department, operator of an emergency medical vehicle, or a member of an emergency services provider that emergency circumstances require the immediate clearing of a public highway railroad grade crossing, the members of the train crew of the train, railroad car or equipment, or engine blocking such crossing shall immediately notify the appropriate railroad dispatcher of the pending emergency situation. Upon receipt of notice of such emergency circumstances by the train crew or dispatcher, the railroad shall immediately clear the crossing, consistent with the safe operation of the train.

(c)  Railroad companies shall provide an alternative entry and exit way when performing maintenance, repairs, and construction when such maintenance, repairs, and construction are done in communities with one road in and out of the community, as a matter of public health and safety.  

CHAPTER 54. EMINENT DOMAIN.

ARTICLE 1. RIGHT OF EMINENT DOMAIN.

§54-1-9. Crossing or alteration of course of works of another entity; civil action; certain utilities crossing railroads; provisions governing.

(a) If any entity having the power of eminent domain under other provisions of this article including any railroad company, canal company, company organized for the purpose of transporting oil or natural or manufactured gas, or both, by means of pipeline, company organized for the purpose of transporting coal and its derivatives and all mixtures and combinations thereof with any substance by means of pipes or otherwise, telephone or telegraph company, company operating an electric transmission line, private corporation or public corporation operating a system of pipelines for transporting water, private corporation or public corporation operating a sewer system for public use, the West Virginia department of highways, or any county court, deems it necessary in the construction or relocation of its works, or any part thereof, to cross any other railroad, canal, sewer line, pipeline, any state or other public road at grade or otherwise, telephone or telegraph line or electric transmission line, such crossing may be made provided said works be so constructed as not to impede the passage or transportation of persons, property, commodities or sewage along, over or through the same. If any such company, private corporation, public corporation, West Virginia department of highways or county court desire that the course of any other railroad, canal, sewer line, pipeline, state, or other public road, telephone or telegraph line, electric transmission line, or any stream which is not a public highway, be altered to avoid the necessity of any crossing, or of frequent crossings, or to facilitate the crossing thereof, or the construction of a parallel work, the alteration may be made in such manner as may be agreed between the said party desiring such alteration and the owner of such other facility or land to be affected thereby. In case the parties interested fail to agree upon such crossing or alteration as is desired, said party desiring such crossing or alteration may bring a civil action, and in such action the court may, in a proper case, order that any proper crossing, or alteration, may be made upon payment of just compensation for the property or interest in property to be taken and upon payment of damages, if any, to the residue thereof beyond all benefits to be derived thereby. Following said civil action, and if the court order such crossing or alteration may be made, said party desiring such crossing or alteration may thereupon proceed under article two of this chapter to obtain the right to make such crossing or alteration and to have determined the amount of compensation and damages owing as a result thereof.

(b) Definitions— For the purposes of this section:

"Actual flagging expenses" 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. "Actual flagging expenses" shall be considered pass-through expenses and shall not exceed the expense incurred by the railroad company.

“Crossing utility” means an entity having the power of eminent domain under other provisions of this article including any railroad company, canal company, company organized for the purpose of transporting oil or natural or manufactured gas, or both, by means of pipeline, company organized for the purpose of transporting coal and its derivatives and all mixtures and combinations thereof with any substance by means of pipes or otherwise, telephone or telegraph company, company operating an electric transmission line, private corporation or public corporation operating a system of pipelines for transporting water, private corporation or public corporation operating a sewer system for public use, the West Virginia department of transportation, or any county commission

"Direct expenses" 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's books, maps, and property records, and other reasonable administrative and engineering costs incurred as a result of the crossing; and

(iii) document and preparation fees associated with a crossing and any engineering specifications related to the crossing.

"Railroad company" 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's facilities or property.

"Standard cumulative crossing fee" means a one-time payment to reimburse the railroad company for all direct expenses, and in lieu of any license, application, risk, or occupancy fees. Such fee shall include any personnel costs such as administrative or engineering reviews of a crossing notice or flagging operation.

(c) If a crossing utility 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 crossing utility may do so, provided that:

(1) Such crossing shall be:

(i) three hundred feet or less in length;

(ii) 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;

(iii) supported by permanent and proper structures and fixtures; and

(iv) 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;

(2) The crossing utility shall give the railroad company written notice of the crossing utility's intent to cross the works of such railroad company at least thirty days before the desired crossing date. The written notice shall include:

(i) the standard cumulative crossing fee described in §54-1-9(e);

(ii) preliminary construction plans that show the location of the crossing, including whether it is located in another public right-of-way;

(iii) the proposed date of commencement of work;

(iv) the anticipated duration of the construction of the crossing, and

(v) the contact information of the crossing utility's point of contact.

(d) The crossing utility shall be responsible for all aspects of the implementation of the physical crossing, including the construction and installation of the utility lines and all related equipment, attachments, and infrastructure. The railroad company shall be responsible for flagging operations and other protective measures that it deems appropriate during the period of utility line construction. The crossing utility shall be responsible for ensuring that the crossing is constructed and operated in accordance with all accepted industry standards, including standards established by all the national safety accrediting bodies.

(e)  A crossing utility that locates within a railroad right-of-way shall pay the railroad company for the right to make a crossing of the railroad company's works a one-time standard cumulative crossing fee of seven hundred fifty dollars for each crossing unless:

(i) otherwise agreed to by the crossing utility and the railroad company or

(ii) the railroad company has petitioned for inverse condemnation in the circuit court of the county in which the crossing is to be located in accordance with this section.  

The crossing utility shall reimburse the railroad company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee if the railroad company schedules the flaggers on or before the proposed crossing date. If the railroad company fails to schedule flaggers on or before the proposed crossing date, then the railroad company shall not be reimbursed for any actual flagging expenses associated with the crossing. The railroad company shall substantiate the actual flagging expenses incurred to qualify for reimbursement.

(f) The crossing utility shall reimburse the railroad company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee if the railroad company schedules the flaggers on or before the proposed crossing date. If the railroad company fails to schedule flaggers on or before the proposed crossing date, then the railroad company shall not be reimbursed for any actual flagging expenses associated with the crossing. The railroad company shall substantiate the actual flagging expenses incurred to qualify for reimbursement.

(g) In no case shall a crossing utility be required to pay a standard cumulative crossing fee for the right to make a crossing of the railroad company's works within another public right-of-way.

(h) If the crossing utility gives notice 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 railroad company shall notify the crossing utility that the specified section of track is legally abandoned within thirty days of such notice. A crossing utility seeking to cross a legally abandoned section of track shall be subject to a reduced one-time standard cumulative crossing fee of five hundred dollars.

(i) If the railroad company asserts that:

(i) the one-time standard cumulative crossing fee is not adequate compensation for the specified 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 circuit court of the county in which the crossing is to be located for inverse condemnation and any other relief pursuant to this section within fifteen days from the date the crossing utility provided notice of the intended crossing. Within thirty days from the date of such notice, the court, in its discretion, may, by notice served upon both parties, suspend work on such crossing for a reasonable time, not to exceed sixty days, upon a showing by the railroad sufficient to obtain injunctive relief under the rules of civil procedure on the grounds that:

(i) the proposed crossing will cause undue hardship on the railroad company; or

(ii) the proposed crossing will create the imminent likelihood of danger to public health or safety.  

(j)  A crossing utility may petition the circuit court in the county in which the crossing is to be located for injunctive and other relief under the rules of civil procedure.

(k) The state shall grant a right-of-way or permit to any crossing utility seeking to use the right-of-way or permit for utility expansion to the extent that the state owns any interest in any real property crossed by a railroad or manages any real property not owned by the state that is crossed by a railroad.

(l) The provisions of this section shall apply notwithstanding any contrary provision of law.

§54-1-9a. Fiber optic broadband lines crossing railroads.

(a) The establishment of a standardized cumulative crossing fee by the legislature under this section is an exercise of its policy to promote the rapid deployment of broadband in the state, and of its authority under the provisions of section 9, Article XI of the Constitution of West Virginia, declaring railways to be public highways of this State.

(b) Definitions— For the purposes of this section:

"Actual flagging expenses" 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. "Actual flagging expenses" shall be considered pass-through expenses and shall not exceed the expense incurred by the railroad company.

"Broadband service provider" means an entity that provides broadband service, including voice-over-internet protocol service, through the utilization of a fiber optic line, coaxial cable, or other wireline system.

"Direct expenses" 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's books, maps, and property records, and other reasonable administrative and engineering costs incurred as a result of the crossing; and

(iii) document and preparation fees associated with a crossing and any engineering specifications related to the crossing.

"Fiber optic line" 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

(ii) another wireline system of technology used for broadband communications.

"Railroad company" 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's facilities or property.

"Standard cumulative crossing fee" means a one-time payment to reimburse the railroad company for all direct expenses, and in lieu of any license, application, risk, or occupancy fees. Such fee shall include any personnel costs such as administrative or engineering reviews of a crossing notice or flagging operation.

(c) 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 may do so, provided that:

(1) Such crossing shall be:

(i) three hundred feet or less in length;

(ii) 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;

(iii) supported by permanent and proper structures and fixtures; and

(iv) 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;

(2) The broadband service provider shall give the railroad company written notice of the provider's intent to cross the works of such railroad company at least thirty days before the desired crossing date. The written notice shall include:

(i) the standard cumulative crossing fee described in 54-1-9a(d);

(ii) preliminary construction plans that show the location of the crossing, including whether it is located in another public right-of-way;

(iii) the proposed date of commencement of work;

(iv) the anticipated duration of the construction of the crossing, and

(v) the contact information of the broadband service provider's point of contact.

(d) The broadband service provider shall be responsible for all aspects of the implementation of the physical crossing, including the construction and installation of the broadband lines and all related equipment, attachments, and infrastructure. The railroad company shall be responsible for flagging operations and other protective measures that it deems appropriate during the period of broadband line construction. 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 and joint use processes of electric utilities.

(e)  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's works a one-time standard cumulative crossing fee of seven hundred fifty dollars for each crossing unless:

(i) otherwise agreed to by the broadband service provider and the railroad company or

(ii) the railroad company has petitioned for inverse condemnation in the circuit court of the county in which the crossing is to be located in accordance with this section.  

The broadband service provider shall reimburse the railroad company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee if the railroad company schedules the flaggers on or before the proposed crossing date. If the railroad company fails to schedule flaggers on or before the proposed crossing date, then the railroad company shall not be reimbursed for any actual flagging expenses associated with the crossing. The railroad company shall substantiate the actual flagging expenses incurred to qualify for reimbursement.

(f) The broadband service provider shall reimburse the railroad company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee if the railroad company schedules the flaggers on or before the proposed crossing date. If the railroad company fails to schedule flaggers on or before the proposed crossing date, then the railroad company shall not be reimbursed for any actual flagging expenses associated with the crossing. The railroad company shall substantiate the actual flagging expenses incurred to qualify for reimbursement.

(g) In no case shall a broadband service provider be required to pay a standard cumulative crossing fee for the right to make a crossing of the railroad company's works within another public right-of-way.

(h) If the broadband service provider gives notice 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 railroad company shall notify the broadband service provider that the specified section of track is legally abandoned within thirty days of such notice. A broadband service provider seeking to cross a legally abandoned section of track shall be subject to a reduced one-time standard cumulative crossing fee of five hundred dollars.

(i) If the railroad company asserts that:

(i) the one-time standard cumulative crossing fee is not adequate compensation for the specified 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 circuit court of the county in which the crossing is to be located for inverse condemnation and any other relief pursuant to this section within fifteen days from the date the broadband service provider provided notice of the intended crossing. Within thirty days from the date of such notice, the court, in its discretion, may, by notice served upon both parties, suspend work on such crossing for a reasonable time, not to exceed sixty days, upon a showing by the railroad sufficient to obtain injunctive relief under the rules of civil procedure on the grounds that:

(i) the proposed crossing will cause undue hardship on the railroad company; or

(ii) the proposed crossing will create the imminent likelihood of danger to public health or safety.  

(j)  A broadband provider may petition the circuit court in the county in which the crossing is to be located for injunctive and other relief under the rules of civil procedure.

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

(l) The provisions of this section shall apply notwithstanding any contrary provision of law.

NOTE: The purpose of this bill is to provide for railroad regulation generally. It relates to railroad powers of the Public Service Commission. It provides a definition; clarifies regulation of service applicable to railroads; provides exceptions; allows for inquiries into management of railroads; allows for inquiries into neglect or violations of law; authorizes examinations and production of books and papers; requires annual statement to commission and identification of officers and directors; provides a prohibition against directing a violation of law; requires maintenance of depots, switches, and sidetracks; recognizes commission's authority over private tracks; prohibits unlawful preference; prohibits violations of article; and provides authority to administer provisions of the article. It requires railroad companies to provide an alternative entry and exit way to one road communities when performing maintenance, repairs, and construction as a matter of public health and safety. It further provides for the regulation of fiber optic broadband lines crossing railroads; sets forth legislative findings and purpose; defines terms; requires a notice of intent to cross; defines conditions of crossing; imposes a one-time standard cumulative crossing fee; sets flagging expenses; delineates crossings within public right of way and crossings of abandoned track; permits a petition by railroad to circuit court for relief and a petition by broadband provider for relief; and sets forth conditions for a broadband provider crossing of state property that is crossed by a railroad or property managed by the state that is crossed by a railroad

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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