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REFERENCE TITLE: railroads; telecommunications corporations; wire-crossing agreements |
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State of Arizona House of Representatives Fifty-sixth Legislature First Regular Session 2023
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HB 2602 |
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Introduced by Representative Dunn
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An Act
amending title 40, chapter 4, article 2, Arizona Revised Statutes, by adding section 40-833; relating to railroads.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 40, chapter 4, article 2, Arizona Revised Statutes, is amended by adding section 40-833, to read:
40-833. Telecommunications corporations; completed crossing application; wire-crossing agreement; standard crossing fee
A. A telecommunications corporation that intends to place a line, wire or cable across a railroad right-of-way shall request the railroad's permission for the placement. The request shall be in the form of a completed crossing application and shall include engineering specifications. On receipt of the application, the railroad and the telecommunications corporation may enter into a binding wire-crossing agreement.
B. Unless the railroad provides written or electronic notice to the telecommunications corporation that the proposed crossing is a serious threat to the safe operations of the railroad or to the current or future use of the railroad right-of-way or would violate any applicable federal law, the railroad shall:
1. Approve the application within thirty-five calendar days after receiving the completed application for a binding wire-crossing agreement.
2. Issue the permit or crossing agreement and schedule flagging to occur within forty-five calendar days after the approved application.
C. If the railroad does not respond to a completed crossing application in writing within thirty calendar days after receiving the application, the telecommunications corporation may petition the commission to enter an order for an expedited wire-crossing permit. The commission shall enter the order within fifteen calendar days after the petition is filed, with notice of the order issued to the railroad and telecommunications corporation. The expedited wire-crossing permit allows a telecommunications corporation to place a line, wire or cable across the railroad right-of-way within a public road crossing in a manner that is not unreasonable or against the public interest, taking into account safety, engineering and access requirements of the railroad as those requirements are prescribed by the federal railroad administration and established by rail industry standards.
D. Except as provided in subsections E and F of this section or as otherwise agreed to by all parties, if a telecommunications corporation places a line, wire or cable across a railroad right-of-way pursuant to this section, the telecommunications corporation shall pay the railroad owner, manager or agent or representative of the railroad a onetime standard crossing fee of $1,250 for each applicable crossing. In addition to the standard crossing fee, the telecommunications corporation shall reimburse the railroad for any actual flagging expenses associated with placing the line, wire or cable. The standard crossing fee is in lieu of any license fee or any other fees or charges to reimburse the railroad for any direct expense incurred as a result of placing the line, wire or cable.
E. If a railroad objects to the proposed crossing because the proposal is a serious threat to the safe operations of the railroad or to the current or future use of the railroad right-of-way or would be a violation of any applicable federal law, the railroad shall provide written or electronic notice to the telecommunications corporation of the objection and the specific basis for the objection. If the parties make good faith efforts to resolve the objection and are unable to resolve the objection, either party may petition the commission for assistance through mediation or arbitration of the disputed crossing application. The petition shall be filed within sixty days after the objection is received. The commission shall issue an order within one hundred twenty days after the petition is filed. The commission shall assess the costs associated with a petition equitably among the parties. An order issued under this subsection is subject to judicial review in the superior court in Maricopa county pursuant to title 12, chapter 7, article 6.
F. If a railroad imposes additional requirements on a telecommunications corporation for crossing the railroad's right-of-way, other than the proposed crossing being a serious threat to the safe operations of the railroad or to the current or future use of the railroad right-of-way or to prevent a violation of any applicable federal law, the telecommunications corporation may object to one or more of the requirements. The telecommunications corporation shall provide written or electronic notice to the railroad of the objection and the specific basis for the objection. If the parties make good faith efforts to resolve the objection and are unable to resolve the objection, either party may petition the commission for resolution or modification of the additional requirements. The petition shall be filed within sixty calendar days after the objection is received. If a petition is filed under this subsection, the commission shall determine, after notice and opportunity for hearing as prescribed by the commission by rule, whether special circumstances exist that necessitate additional requirements for placing the line, wire or cable. The commission shall issue an order within one hundred twenty calendar days after the petition is filed. The commission shall assess the costs associated with a petition equitably among the parties. An order issued under this subsection is subject to review in the superior court in Maricopa county pursuant to title 12, chapter 7, article 6.
G. A wire-crossing agreement between a railroad and a telecommunications corporation that includes a provision, clause, covenant or agreement contained in, collateral to or affecting the wire-crossing agreement that purports to indemnify, defend or hold harmless the railroad from any liability for loss or damage resulting from the negligence or wilfull and wanton misconduct of the railroad or its agents, employees or independent contractors who are directly responsible to the railroad or has the effect of indemnifying, defending or holding harmless the railroad from the negligence or wilfull and wanton misconduct of the railroad or its agents, employees or independent contractors who are directly responsible to the railroad is against the public policy of this state and is unenforceable.
H. This section does not affect a provision, clause, covenant or agreement in which the telecommunications corporation indemnifies, defends or holds harmless a railroad against liability for loss or damage to the extent that the loss or damage results from the negligence or wilfull and wanton misconduct of the telecommunications corporation or its agents, employees or independent contractors who are directly responsible to the telecommunications corporation.