86-577.

Agency or political subdivision; dark fiber; lease or license.

(1) For purposes of this section:

(a) Enforceable commitment means a binding legal agreement between an Internet service provider and the federal government or this state by which the Internet service provider receives a grant of federal or state funds in exchange for the Internet service provider deploying broadband service infrastructure to one or more unserved locations and that includes administrative or other penalties if the Internet service provider fails to meet the terms of such agreement; and

(b) Unserved location means a location, as determined in accordance with the Nebraska location fabric broadband access map created by the Nebraska Broadband Office pursuant to section 86-333, where:

(i) Broadband is not available by fiber-optic technology or cable modem or hybrid fiber-coaxial technology at speeds of at least one hundred megabits per second for downloading and at least twenty megabits per second for uploading with a latency sufficient to support real-time, interactive applications; and

(ii) No Internet service provider has an enforceable commitment to make broadband service available at speeds of at least one hundred megabits per second for downloading and at least twenty megabits per second for uploading with a latency sufficient to support real-time, interactive applications.

(2) Any agency or political subdivision of the state may lease or license its dark fiber and related infrastructure under such terms as determined by such agency or political subdivision pursuant to its duly adopted and promulgated rules and regulations, issued orders, written policies, enacted ordinances, or adopted resolutions if:

(a) The lessee or licensee is a certificated telecommunications common carrier or a permitted telecommunications contract carrier pursuant to section 86-128 or an Internet service provider;

(b) The lease or license terms are fair, reasonable, and nondiscriminatory;

(c) All locations where service will be made available pursuant to the lease or license are, at the time the lease or license is filed pursuant to subsection (3) of this section, unserved locations; and

(d) The lease or license complies with this section.

(3)(a) Before a lease or license of dark fiber under this section becomes effective, it shall be filed by the lessee or licensee with the commission, and the lease or license shall become effective upon such filing. The lease or license rate shall be within or above the safe harbor range of market rates established pursuant to subdivision (4)(a) of this section.

(b) Within five days after a lease or license is filed, the commission shall provide notice of the lease or license to all Internet service providers providing service in the counties where any unserved locations subject to the lease or license are located.

(c) Any Internet service provider may challenge a lease or license filed with the commission pursuant to this subsection alleging that such lease or license does not serve an unserved location in violation of subdivision (2)(c) of this section. A provider shall file such challenge with the commission within thirty days after receipt of the notice described in subdivision (b) of this subsection. The commission shall make a determination regarding such alleged violation within thirty days after the challenge is filed.

(d) If an Internet service provider files a challenge under subdivision (c) of this subsection alleging that a location is not an unserved location and the commission finds that it is an unserved location, the Internet service provider filing such challenge may be prohibited from filing any other challenge pursuant to subdivision (c) of this subsection for a period of two years from the date such challenge was filed.

(4)(a) For the lease or license of dark fiber under this section, the commission shall establish a safe harbor range of market rates for all dark fiber leases or licenses using a competitive price determination comparison. When conducting a competitive price determination comparison, the commission, in its discretion, shall use rate schedules, interconnection agreements, or other documents within its regulatory oversight and shall gather other market rate information as deemed necessary. If a lease or license utilizes rates within or above the safe harbor range, such rates shall be deemed approved.

(b) Revenue obtained by any agency or political subdivision from the lease or license of dark fiber under this section shall only be used for billing, construction, operation, and maintenance costs associated with the lease or license of such dark fiber or for any existing dark fiber or fiber-related infrastructure.

(c) Revenue obtained by any agency or political subdivision from the sale or delivery of electricity shall not be used for billing, construction, operation, or maintenance costs associated with the lease or license of dark fiber under this section.

(5)(a) If a dispute arises between an Internet service provider claiming an enforceable commitment for a location and an Internet service provider seeking to utilize a dark fiber lease or license to serve such location, either party may file a request with the state entity with which there is an enforceable commitment to verify the enforceable commitment. Upon the filing of the request, such state entity shall require, and the Internet service provider claiming the enforceable commitment shall provide, documentation related to the enforceable commitment. The state entity shall review the documentation and make a finding as to the Internet service provider's compliance with the enforceable commitment and the reasonable likelihood of meeting its deployment obligations under the enforceable commitment. All documentation submitted to the state entity under this subdivision shall be deemed confidential and not subject to public disclosure pursuant to sections 84-712 to 84-712.09.

(b) There is no enforceable commitment and a location is considered an unserved location when:

(i) A grant of federal or state funds is forfeited by the Internet service provider for such location;

(ii) The Internet service provider is disqualified by the granting governmental entity from receiving a grant of federal or state funds to deploy broadband service infrastructure to such location; or

(iii) After reviewing documentation submitted pursuant to this subsection, the state entity verifying the enforceable commitment finds that the Internet service provider is not in compliance with the enforceable commitment or will fail to meet the terms of the enforceable commitment for such location.