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DAMAGES TO
UNDERGROUND FACILITIES
Since
the beginning of the year, there have been several high profile news stories
involving damages to underground cabling and pipeline facilities. In January 2010, a Qwest fiber optic line was
severed when a steam pipe burst, leaving parts of Northeast Minnesota without
any 911 service for more than 12 hours.
On February 1, 2010, a home in St. Paul exploded when a contractor
attempting to unclog a sewer line hit a natural gas line that had been
mistakenly relocated to run through the home's sewer line. On February 23, 2010, an Edina home exploded
after a Qwest contractor struck a natural gas line.
There
are two key players responsible for facilitating construction of underground
facilities and enforcing state safety standards in Minnesota. Minnesota's Office of Pipeline Safety (OPS),
a division of the Minnesota Department of Public Safety, is responsible for
enforcing laws, creating and enforcing regulations governing Minnesota's
excavation notice system, Gopher One Call.
Gopher One Call is not a state agency, but a non-profit corporation that
operates Minnesota's single statewide excavation notification center. All owners of underground facilities are
required by state law to participate in and share the costs of operating the
Gopher One Call (GOC) system. GOC is
governed by board of directors of up to 20 members. The director of the OPS has a permanent seat on the board. Other board members are elected by and must
represent underground facility owners, excavators, and other persons eligible
to participate in the GOC system.
If
an excavator damages an underground facility, the excavator must reimburse the
operator for the cost of necessary repairs.
For pipelines, the excavator must also reimburse for the cost of the
product that was being carried in the pipeline and which was lost as a direct
result of the damage. Reimbursement is
not required if the damage to the underground facility was caused by the sole
negligence of the operator or the operator failed to comply with facility
location marking requirements under state law.
Both excavators and operators who violate Minnesota's excavation notice
laws are subject to maximum penalties of $1,000 per day per violation.
OPS
maintains a database of voluntarily submitted damage reports. However, OPS officials state that the data
provided by facility owners is inconsistently reported, particularly by owners
of communications facilities. With this
caveat, Mendoza Law Office reviewed the voluntary reporting data for 2006-2009,
and makes the following observations:
The
three most common causes for damages to all types of underground facilities
are:
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Failure to hand dig
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Mismarked or unmarked facilities
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Locate requests not made
In
2008, the most common cause of damage to underground facilities was
"failure to protect and support the facility." No
unique trends appear evident in the OPS data with respect to causes of damage
to communications facilities.
Damage appears to occur more frequently to
communications facilities than to underground facilities overall. For nine of the past thirteen years
reported, the frequency of damages to communications facilities was higher than
the frequency of damage to all underground types of underground facilities.
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MINNESOTA TELECOM LEGISLATIVE UPDATE
Senate
File 2532/House File 2629 (Municipal ownership of phone systems)
Chief
Authors:
Senate: Tom Bakk (DFL District 6)
House: David Dill (DFL District 6A)
Bill
Summary:
Senate
Version: The bill, as it currently
stands in the Senate, would lower the threshold that must be achieved in
referenda in which municipalities seek to offer telephone services. Current law requires a 65% supermajority in
a municipal referendum to authorize a municipality to own and operate a
telephone exchange. The bill would
lower this threshold to require only a majority of those voting in the election
to approve. After passage by the
Energy, Utilities, Technology and Communications Committee on February 18,
2010, the bill was substantially amended in the Senate State and Local
Government Operations Oversight Committee to include provisions that (a)
prohibit municipalities from cross-subsidizing municipal phone systems with
general operating funds; (b) require municipalities to conduct a feasibility
analysis prior to holding a referendum; (c) prohibit municipalities from
discriminating in favor of their own systems with respect to issues such as
right-of-way use; and (d) require municipalities to use competitive bidding in
developing feasibility studies, and the construction or acquisition of a phone
system.
House
Version: The House version of this bill
would only lower the referendum percentage required for passage for Cook
County, Minnesota.
Bill
Status:
Senate: After the amendments made by the State and
Local Government Operations and Oversight Committee, the bill received its
second reading in the Senate.
House: After clearing the House Commerce and Labor,
the chief author of the House bill, Rep. Dill, re-referred the bill from the
House General Register to the House State and Local Government Operations
Reform, Technology, and Elections Committee (Government Operations
Committee). The chair of the Government
Operations Committee referred the bill to its Local Government division, which
is where the House bill now resides.
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Senate
File 2254/House File 2907 (Broadband Advisory Group)
Chief
Authors:
Senate: Yvonne Prettner-Solon (DFL District 7)
House: Sheldon Johnson (DFL District 67B)
Bill
Summary: The bill would codify goals
for broadband deployment and access established by the Minnesota Broadband Task
Force in its October 30, 2009 report.
The current Senate version requires the Commissioner of Commerce to
report annually to the legislative committees with primary jurisdiction over
broadband policy. The House version
would also require reports from the Commerce Department, but would also allow
the Commerce Commissioner to appoint an advisory group for assistance in
achieving the state's broadband goals.
Bill
Status:
Senate: The bill has received its second reading.
House: The bill has been placed on the House
Calendar for final vote on the House floor.
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Senate
File 2535/House File 2852 (Telephone company video franchise service area)
Chief
authors:
Senate: Scott Dibble (DFL District 60)
House: Sheldon Johnson (DFL District 67B)
Bill
summary: The bill would prohibit local
cable franchising authorities from requiring a telephone company to build out
plant beyond its MPUC certificated service area where the municipal boundaries
and telephone exchange boundaries are incongruous.
Bill
Status:
Senate: Placed on General Orders to pass.
House: Passed by the House Telecommunications
Regulation and Infrastructure Division.
Was not considered by the House Commerce and Labor Committee prior to
the second deadline requiring passage through committee by March 19, 2010.
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Senate
File 2616/House File 3097 (Private Shared Services)
Chief
authors:
Senate: Kathy Sheran (DFL District 23)
House:
Al Juhnke (DFL District 13B)
Bill Summary: The bill would require landlords and other owners of multiple
tenant buildings to allow competitive providers of private shared phone, video,
or broadband services to access tenants within such buildings. The bill also requires property owners to facilitate
such access within their buildings.
Bill Status:
Senate: Bill has received second reading.
House: Bill has received second reading
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Senate
File 2470/House File 2639 (authorizing wireless carriers to provide call
location information to authorities in emergency situations)
Bill
Status:
House: Placed on House Calendar for passage.
Senate: Has
received second reading.
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UPCOMING EVENTS
Wednesday,
April 14, 2010 - Tony Mendoza speaks on "Digital Public Performance Rights
in Sound Recordings;" MSBA Communications Law Section CLE Luncheon (Free
to all MSBA Communications Law Section members). MSBA Offices, 600 Nicollet Mall #380, Minneapolis, MN 55402.
Wednesday,
June 9, 2010 - Minnesota State Bar Association Regional Communications Law
Forum; Minnesota CLE Center.
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