86-704. Telecommunications companies; right-of-way; wires; municipalities; powers and duties; increase in occupation tax; procedure; election.

(1) Any telecommunications company, incorporated or qualified to do business in this state, is granted the right to construct, operate, and maintain telecommunications lines and related facilities along, upon, across, and under the public highways of this state, and upon and under lands in this state, whether state or privately owned, except that (a) such lines and related facilities shall be so constructed and maintained as not to interfere with the ordinary use of such lands or of such highways by the public and (b) all aerial wires and cables shall be placed at a height of not less than eighteen feet above all highway crossings.

(2) Sections 86-701 to 86-707 shall not transfer the rights now vested in municipalities in relation to the regulation of the poles, wires, cables, and other appliances or authorize a telecommunications company to erect any poles or construct any conduit, cable, or other facilities along, upon, across, or under a public highway within a municipality without first obtaining the consent of the governing body of the municipality. The municipality shall not exercise any authority over any rights the telecommunications company may have to deliver telecommunications services as authorized by the Public Service Commission or the Federal Communications Commission.

(3) Consent from a governing body for the use of a public highway within a municipality shall be based upon a lawful exercise of its statutory and constitutional authority. Such consent shall not be unreasonably withheld, and a preference or disadvantage shall not be created through the granting or withholding of such consent. A municipality shall not adopt an ordinance that prohibits or has the effect of prohibiting the ability of a telecommunications company to provide telecommunications service.

(4)(a) A municipality shall not levy a tax, fee, or charge for any right or privilege of engaging in a telecommunications business or for the use by a telecommunications company of a public highway other than:

(i)(A) Until January 1, 2013, an occupation tax authorized under section 14-109, 15-202, 15-203, 16-205, or 17-525; and

(B) Beginning January 1, 2013, an occupation tax authorized under section 14-109, 15-202, 15-203, 16-205, or 17-525 that meets the following requirements:

(I) The occupation tax shall be imposed only on the receipts from the sale of telecommunications service as defined in subdivision (7)(aa) of section 77-2703.04; and

(II) The occupation tax shall not exceed six and twenty-five hundredths percent except as provided in subsection (5) of this section; and

(ii) A public highway construction permit fee or charge to the extent that the fee or charge applies to all persons seeking use of the public highway in a substantially similar manner. All public highway construction permit fees or charges shall be directly related to the costs incurred by the municipality in providing services relating to the granting or administration of permits. Any highway construction permit fee or charge shall also be reasonably related in time to the occurrence of such costs.

(b) Any tax, fee, or charge imposed by a municipality shall be competitively neutral.

(5) Beginning January 1, 2013, a municipality may increase an occupation tax described in subdivision (4)(a)(i)(B) of this section to a rate that exceeds the limit contained in subdivision (4)(a)(i)(B)(II) of this section if the question of whether to increase such rate has been submitted at a primary or general election at which members of the governing body of the municipality are nominated or elected or at a special election held within the municipality and in which all registered voters shall be entitled to vote on such question. A municipality may not increase its existing rate pursuant to this subsection by more than twenty-five hundredths percent at any one election. The officials of the municipality shall order the submission of the question by submitting a certified copy of the resolution proposing the rate increase to the election commissioner or county clerk at least fifty days before the election. The election shall be conducted in accordance with the Election Act. If a majority of the votes cast upon such question are in favor of such rate increase, then the governing body of such municipality shall be empowered to impose the rate increase. If a majority of those voting on the question are opposed to such rate increase, then the governing body of the municipality shall not impose such rate increase.

(6) The changes made by Laws 1999, LB 496, shall not be construed to affect the terms or conditions of any franchise, license, or permit issued by a municipality prior to August 28, 1999, or to release any party from any obligations thereunder. Such franchises, licenses, or permits shall remain fully enforceable in accordance with their terms. A municipality may lawfully enter into agreements with franchise holders, licensees, or permittees to modify or terminate an existing franchise, license, or agreement.

(7) Taxes or fees shall not be collected by a municipality through the provision of in-kind services by a telecommunications company, and a municipality shall not require the provision of in-kind services as a condition of consent to the use of a public highway.

(8) The terms of any agreement between a municipality and a telecommunications company regarding use of public highways shall be matters of public record and shall be made available to any member of the public upon request, except that information submitted to a municipality by a telecommunications company which such telecommunications company determines to be proprietary shall be deemed to be a trade secret pursuant to subdivision (3) of section 84-712.05 and shall be accorded full protection from disclosure to third parties in a manner consistent with state law.

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Cross References

Annotations

Rural telephone company is not a common carrier, subject to railway commission, merely because its poles and wires are on a public highway. State v. Southern Elkhorn Tel. Co., 106 Neb. 342, 183 N.W. 562 (1921).

Telephone company is required to maintain line, where it crosses pasture, at such height and in such condition as not to injure persons and domestic animals. Coen v. Central Tel. Co., 95 Neb. 814, 146 N.W. 998 (1914).

All road crossings refer to private as well as public roads. Traveler is not required to anticipate danger from low-strung wires. Weaver v. Dawson County Mut. Tel. Co., 82 Neb. 696, 118 N.W. 650 (1908).

Use of city, town, and village streets may be granted by authorities. City of Plattsmouth v. Nebraska Tel. Co., 80 Neb. 460, 114 N.W. 588 (1908).

Suit by taxpayer to prevent city from granting franchise to telephone company must show that granting thereof will increase taxation. Clark v. Interstate Ind. Tel. Co., 72 Neb. 883, 101 N.W. 977 (1904).

Section 86-301 (recodified in 2002 as section 86-704) does not include streets and alleys of a municipal corporation. Nebraska Tel. Co. v. Western Ind. L. D. Tel. Co., 68 Neb. 772, 95 N.W. 18 (1903).

Property owner is entitled to compensation for burden on his property constituted by erection of line. Company is liable for destruction of and injury to trees. Bronson v. Albion Tel. Co., 67 Neb. 111, 93 N.W. 201 (1903).

Discrimination by telephone company is prohibited. State ex rel. Webster v. Nebraska Tel. Co., 17 Neb. 126, 22 N.W. 237 (1885).

Telegraph company's property within state is subject to state taxation, though company rightfully exercised rights and privileges in nature of franchise from federal government and was engaged in interstate commerce. Western Union Telegraph Co. v. Weaver, 5 F.Supp. 493 (D. Neb. 1932).