TN Code § 54-16-112 (2021)
2021 Tennessee Code|Title 54 - Highways, Bridges and Ferries|Chapter 16 - Controlled-Access Facilities|§ 54-16-112. Underground Fiber Optic Cable Facilities — Intelligent Transportation System and Radio Communications Facilities — Rules and Regulations — Setting Rate of Compensation — Creation of Advisory Board — Construction and Application of Section — Restrictions on Use of Underground Fiber Optic Cable Lines and Related Facilities

  The department of transportation may issue 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 controlled-access highways on the state highway system or federal interstate highway system, or both, subject to reasonable and appropriate regulations to protect the public safety and welfare.    Notwithstanding any other provision of law to the contrary, as a prerequisite to the issuance of a permit under subsection (a), the department has the authority to require a one-time payment of fair and reasonable compensation for use of the right-of-way. This compensation shall be in addition to any administrative fees or charges the department may require for the issuance of a permit. The department shall receive this compensation as determined by the advisory board in accordance with subsection (d). Any compensation received is to be used by the department solely for constructing, operating and maintaining an intelligent transportation system and radio communications facilities for use by the state.   As used in this section, “intelligent transportation system” means communications, computer and information systems and other technology utilized by the department to manage the flow of traffic on the controlled-access highways on the state highway system or federal interstate highway system, or both.     The commissioner of transportation has the authority to promulgate and enforce rules and regulations to carry out this section, except for the setting of the rate of compensation. The rate of compensation shall be set by the advisory board established pursuant to subsection (d).    There is created an advisory board to establish fair, reasonable and non-discriminatory compensation for the use of the right-of-way under this section. In determining the rate and method of the compensation, the board shall provide for the option, to be exercised at the discretion of the department, of payment of the compensation by the providing of telecommunications facilities and services, and for a method of valuation of such in-kind payments.  The advisory board shall consist of the governor or the governor's designee, the commissioner of finance and administration, the comptroller of the treasury, the state treasurer, the secretary of state, the commissioner of transportation, and three (3) representatives of the telecommunications industry.   The governor shall appoint one (1) telecommunications industry representative representing a facilities-based competing telecommunications services provider doing business in the state or a franchised cable company doing business in the state; the speaker of the senate shall appoint one (1) telecommunications industry representative representing an incumbent local exchange carrier doing business in the state; and the speaker of the house of representatives shall appoint one (1) telecommunication industry representative representing an inter-exchange carrier doing business in the state.   To ensure that competitive interests are represented on the advisory board, the three (3) representatives of the telecommunications industry shall at no time be employed by or otherwise related to the same person or any affiliate of the person. In the event that a conflict arises under this subdivision (d)(1)(C) because of a merger, acquisition or other transaction between two (2) or more persons within the telecommunications industry, then the appointing authorities of one (1) or more of the affected representatives shall appoint different representatives to avoid the conflict. For purposes of this subdivision (d)(1)(C), “affiliate” means a person who directly, or indirectly through one (1) or more intermediaries, controls, or is controlled by, or is under common control with, another person.   The chair of the state regulatory authority shall be a nonvoting member of the advisory board. A majority of voting members shall constitute a quorum at a board meeting. No vote may be taken unless a quorum is present. All decisions of the board shall be made by a majority vote of those members present and entitled to vote.     In establishing the rate of fair and reasonable compensation for use of the right-of-way under this section, the advisory board shall consider all factors evidencing the value of use of the right-of-way, including, but not limited to, savings on construction costs due to ease of installation in controlled-access highway rights-of-way, comparable rates charged for the access, amount of right-of-way available in certain locations and demand for certain locations. Information pertaining to these factors shall be presented to the advisory board by the department and any other interested parties.   The initial rate set shall be effective until the advisory board reconsiders the rate as provided in subdivision (4).   Upon the request of the department or an applicant for a permit pursuant to subsection (a), the advisory board shall meet to consider a request to adjust the rate of compensation. Upon a showing that the current rate no longer reflects the value of access to the right-of-way, the board shall adjust the rate accordingly; provided, that the rate shall not be adjusted more frequently than once every twelve (12) months.   The department shall provide, upon request, any administrative assistance as required by the advisory board.     Nothing in this section or in any other provision of state law shall be construed to require the department to accommodate or permit the longitudinal installation of any utilities other than underground fiber optic cable lines and related facilities as permitted under this section within the rights-of-way of controlled-access highways, except as the department provides in its rules and regulations for accommodating facilities within highway rights-of-way.   This section applies only to the installation of underground fiber optic cable lines and related facilities within the rights-of-way on controlled access highways on the state highway or federal interstate highway system. Nothing in this section shall be construed as otherwise altering, amending or affecting the statutory, regulatory, or common law rights conferred to any telecommunications company to use the rights-of-way of any highways, county roads, city streets, or public lands of the state, including, but not limited to, those rights conferred by §§ 65-21-101 and 65-21-201.   The use of compensation received under this section to offer or provide telecommunication services to the public for hire by the department or through any other governmental or business entity or business arrangement is expressly prohibited.   [Deleted by 2013 amendment.]   [Deleted by 2013 amendment.]   [Deleted by 2013 amendment.]