PRINTER'S NO. 1219
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1151
Session of
2023
INTRODUCED BY MERSKI, PICKETT, MADDEN, MARSHALL, SANCHEZ, HILL-
EVANS, HARKINS, NEILSON, TAKAC, MALAGARI, B. MILLER, ROZZI,
CERRATO AND CONKLIN, MAY 18, 2023
REFERRED TO COMMITTEE ON CONSUMER PROTECTION, TECHNOLOGY AND
UTILITIES, MAY 18, 2023
AN ACT
Amending Title 68 (Real and Personal Property) of the
Pennsylvania Consolidated Statutes, in broadband services,
further providing for definitions and providing for
application for crossing, for review and approval of
application for crossing, for procedures for crossing, for
fees and costs associated with crossing, for petition to
commission, for duties of commission and for miscellaneous
provisions.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 8201 of Title 68 of the Pennsylvania
Consolidated Statutes is amended by adding definitions to read:
§ 8201. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Actual flagging expenses." Expenses directly attributable
to the cost of maintaining flaggers at the point of crossing
during the period of time work by a broadband service provider
is actually occurring.
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* * *
"Broadband service provider." An electricity,
telecommunications, cable operator or Internet supplier or
affiliate or an electric cooperative corporation or an affiliate
of an electric cooperative corporation that constructs, owns or
installs broadband facilities to provide broadband services.
* * *
"Commission." The Pennsylvania Public Utility Commission.
"Crossing." The construction, installation, operation,
repair or maintenance of broadband facilities over, under or
across railroad property by a broadband service provider.
"Direct expenses." Expenses incurred by a railroad,
including:
(1) The cost of inspecting and monitoring the crossing
site.
(2) Administrative and engineering costs for review of
specifications and for entering a crossing site on the
railroad's books, maps and property records and other
reasonable administrative and engineering costs incurred as a
result of the crossing.
(3) Document and preparation fees associated with a
crossing and any engineering specifications related to the
crossing.
(4) Actual flagging expenses associated with the
crossing which shall not exceed the expense incurred by the
railroad company.
* * *
"License fee." The fee to be paid by the broadband service
provider to the railroad company for the crossing, including all
occupancy or real property rights.
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"Railroad." Any form of nonhighway ground transportation
that runs on rails or electromagnetic guideways, including:
(1) Commuter or other short-haul railroad passenger
service in a metropolitan or suburban area.
(2) High-speed ground transportation systems that
connect metropolitan areas, but not rapid transit operations
in an urban area that are not connected to the general
railroad system of transportation.
"Railroad company." A person that owns, leases or operates a
railroad or owns or leases the land upon which a railroad is
operated, or its agents or assigns, including a 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 railroad property.
"Railroad property." All real property owned, leased or
operated by a railroad company, including a bridge, depot,
easement, facility, right-of-way, terminal, track, trestle,
tunnel, viaduct, yard or any other land owned, leased or used
for railroad service in the operation of a railroad company.
The term does not include a railroad company's administrative
building or offices, office equipment or intangible property
such as computer software or other information.
Section 2. Title 68 is amended by adding sections to read:
§ 8203. Application for crossing.
(a) General.--If a broadband service provider deems it
necessary in the construction or installation of broadband
facilities to cross railroad property, the broadband service
provider shall submit an application for the crossing to the
railroad company.
(b) Contents of application.--The broadband service
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provider's application for a crossing shall include:
(1) The license fee described in section 8206 (relating
to fees and costs associated with crossing).
(2) The location of the crossing site.
(3) The proposed date of commencement of work at the
crossing site.
(4) The anticipated duration of the work at the crossing
site.
(5) The anticipated areas surrounding the crossing site
in which the project personnel will work.
(6) The contact information of the broadband service
provider's point of contact.
(7) A copy of a certificate of the broadband service
provider's commercial general liability insurance policy or
railroad protective liability insurance policy.
(8) Engineering design plans, construction plans, bore
plans, fraction mitigation plans, dewatering plans, rigging
and lifting plans and any other pertinent plans deemed
necessary and prepared by a registered professional engineer.
(9) An attestation of the date that the broadband
service provider provided notice of the crossing, including
the information specified in paragraphs (2), (3), (4), (5)
and (6), to the commission and the Pennsylvania One Call
System.
§ 8204. Review and approval of application for crossing.
(a) Acknowledgment.--Upon receipt of a broadband service
provider's application for a crossing, the railroad company
shall acknowledge receipt of the application.
(b) Review.--The railroad company shall review the
application and may request additional information or
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clarification from the broadband service provider within 20 days
from receipt of the application.
(c) Response time.--If additional information or
clarification is requested by the railroad company, the
broadband service provider shall respond within 10 days from the
receipt of the request.
(d) Time for approval.--The railroad company shall approve
the broadband service provider's application for a crossing
within 45 days from receipt of the application unless the
railroad company petitions the commission under section 8207
(relating to petition to commission).
§ 8205. Procedures for crossing.
(a) Procedure.--A proposed crossing shall be:
(1) Located, constructed and operated so as not to
impair, impede or obstruct the operations of the railroad to
be crossed.
(2) Supported by permanent and proper structures and
fixtures.
(3) Controlled by customary and approved appliances,
methods and regulations to prevent damage to the operations
of the railroad and ensure the safety of passengers.
(b) Coordination.--The railroad company and the broadband
service provider shall coordinate to schedule the date for
commencement of the crossing, which shall be within 30 days of
the approval of the application for a crossing, or at a later
date as indicated in the application or mutually agreed upon.
(c) Implementation.--The broadband service provider shall be
responsible for all aspects of the implementation of the
physical crossing, including construction and installation of
the broadband facilities and all related equipment, structures,
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fixtures and infrastructure.
(d) Standards and practices.--The broadband service provider
shall be responsible for ensuring that all construction,
installation, maintenance, operation or repair of broadband
facilities over, under or across railroad property is performed
in accordance with accepted industry standards and good utility
practices.
(e) Protective measures.--The railroad company shall be
responsible for flagging operations and other protective
measures that the railroad company deems appropriate during the
actual construction, installation, maintenance or repair of
broadband facilities over, under or across railroad property.
§ 8206. Fees and costs associated with crossing.
(a) Fee.--A broadband service provider that submits an
application for a crossing shall pay to the railroad company a
license fee of $2,000 for each crossing.
(b) Reimbursement.--
(1) In addition to the license fee, the broadband
service provider shall reimburse the railroad company for
direct expenses.
(2) Direct expenses shall not exceed $8,000 unless:
(i) an additional expense amount is agreed to by the
broadband service provider; or
(ii) the railroad company petitions the commission
for additional reimbursement and the commission has
issued a subsequent order directing an additional
reimbursement by the broadband service provider.
(c) Documentation.--To qualify for reimbursement of direct
expenses, the railroad company shall provide documentation and
other direct evidence of the direct expenses incurred to the
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broadband service provider.
(d) Abandoned property.--Notwithstanding the provisions of
subsection (a), if the broadband service provider submits an
application to a railroad company for a crossing site on
railroad property that has been legally abandoned pursuant to an
order of a Federal or State agency having jurisdiction over the
railroad property and is not being used for railroad service,
the license fee shall be $1,000.
§ 8207. Petition to commission.
(a) General rule.--Within 40 days from receipt of a
broadband service provider's application for a crossing, the
railroad company may petition the commission for relief and
provide simultaneous notice to the broadband service provider,
if the railroad company asserts that:
(1) the license fee is not adequate compensation for the
proposed crossing;
(2) the proposed crossing will cause undue hardship on
the railroad company; or
(3) the proposed crossing will create the imminent
likelihood of danger to public health or safety.
(b) Petition for additional reimbursement.--After incurring
direct expenses, but no later than 120 days following the
completion of work associated with a crossing by a broadband
service provider, the railroad company may petition the
commission for additional reimbursement of direct expenses by
the broadband service provider if the direct expenses exceed
$8,000 and the direct expenses have not been agreed to by the
broadband service.
(c) Costs.--All costs for services rendered by the
commission associated with a railroad company's petition for
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additional reimbursement of direct expenses under subsection (b)
shall be borne by the railroad company.
(d) Relief.--The broadband service provider may petition the
commission for relief if the railroad company does not comply
with the applicable provisions of this section and sections 8204
(relating to review and approval of application for crossing),
8205 (relating to procedures for crossing) and 8206 (relating to
fees and costs associated with crossing) or has otherwise
wrongfully rejected or delayed the broadband service provider's
application.
(e) Noncompliance.--The railroad company may petition the
commission for relief if the broadband service provider does not
comply with the applicable provisions of sections 8203 (relating
to application for crossing), 8204, 8205 and 8206.
(f) Equal costs.--Except as provided in subsections (b) and
(c), all costs for services rendered by the commission
associated with a petition filed under subsection (d) or (e)
shall be borne equally by the broadband service provider and the
railroad company.
§ 8208. Duties of commission.
(a) General rule.--The commission shall promulgate
regulations as necessary for the construction and installation
of broadband facilities to cross railroad property.
(b) Findings and determinations.--
(1) The commission may make necessary findings of fact
and determinations related to the adequacy of compensation,
the existence of undue hardship on the railroad company or
the imminent likelihood of danger to public health or safety,
as well as any relief to be granted, including any amount to
which the railroad company is entitled in excess of the
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license fee or reimbursement of direct expenses as prescribed
in section 8206 (relating to fees and costs associated with
crossing).
(2) If the railroad company asserts that the license fee
is not adequate compensation for the specified crossing, the
issue of compensation may be considered by the commission
after the commencement or completion of the work by the
broadband service provider.
(c) Commission powers.--The commission may, in its
discretion:
(1) Examine the location, plans, specifications and
methods proposed to be employed.
(2) Hear objections and consider modifications from a
railroad company.
(3) Within the time that the commission determines,
reject, approve or modify the plans and specifications.
(d) Adjudication.--The commission shall adjudicate a
petition by the railroad company or the broadband service
provider and issue a final order within 90 days of the
petition's initial filing.
(e) Jurisdiction.--The commission shall have sole
jurisdiction to hear and resolve claims between railroad
companies and broadband service providers concerning railroad
crossings under sections 8203 (relating to application for
crossing), 8204 (relating to review and approval of application
for crossing), 8205 (relating to procedures for crossing), 8206
(relating to fees and costs associated with crossing) and 8207
(relating to petition to commission).
§ 8209. Miscellaneous provisions.
(a) Findings.--The establishment of a license fee cap and a
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direct expenses reimbursement cap by the Commonwealth is an
exercise of the Commonwealth's policy to promote the rapid
deployment of broadband throughout this Commonwealth.
(b) Construction.--The provisions of this section shall be
construed in favor of broadband expansion.
(c) Liability.--The broadband service provider shall
maintain a commercial general liability insurance policy or
railroad protective liability insurance policy that:
(1) Does not exclude work within 50 feet of railroad
property.
(2) Remains in effect during the period of time work on
a crossing is actually occurring.
(d) Existing agreements and disputes.--With the exception of
section 8202 (relating to broadband services), nothing in this
chapter shall prevent a railroad company and a broadband service
provider from continuing under an existing agreement or from
otherwise negotiating the resolution of any disputes relating to
the crossing.
Section 3. This act shall take effect in 180 days.
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