NAC408.442. Duties of provider of telecommunications or community antenna television company if Department does not have fee interest in state highway or right-of-way.

     1. Except as otherwise provided in Part 645 of Title 23 of the Code of Federal Regulations, if the Department does not have a fee interest in a state highway or right-of-way, the Director may not, as a condition for the issuance of an occupancy permit, require the provider of telecommunications or community antenna television company to acquire at its expense all easements, consents or other rights or interests from the owners of fee interests or other interests for any section of the state highway or right-of-way if the provider or company provides indemnification to the State of Nevada, the Department and its officers, agents and employees pursuant to the provisions of this section.

     2. If the Department does not have a fee interest in a state highway or right-of-way, the provider of telecommunications or community antenna television company must indemnify, defend and hold harmless the State of Nevada, the Department and its officers, agents and employees from any claim, cause of action, liability, loss, damage, cost, expense or fee that the State of Nevada, the Department or its officers, agents or employees may be required to pay to any person claiming the fee interest or other property interest in that state highway or right-of-way, unless the provider or company establishes that the damage or injury was caused by the willful misconduct or gross negligence of the State of Nevada, the Department or its officers, agents or employees. The agreement of indemnification required pursuant to this subsection must include a provision setting forth:

     (a) The obligation of the provider or company to commence and diligently prosecute an appropriate cause of action or defend any other cause of action to protect the Department from the immediate or automatic reversion of any easement or other interest in the state highway or right-of-way and remove any telecommunications facility from a state highway or right-of-way if ordered by a court of competent jurisdiction;

     (b) The obligation of the provider or company or its successor in interest whose net assets in this state, as defined according to generally accepted accounting principles, are less than $20,000,000 to obtain a surety bond, in an amount determined by the Department based on reasonable costs related to the removal of the telecommunications facility and restoration of the state highway or right-of-way and to designate the State of Nevada, the Department and its officers, agents and employees as beneficiaries of the surety bond and as parties who may bring an action on the surety bond if the indemnity of the provider or company is not adequate; and

     (c) The obligation of the provider or company to include in any instrument transferring ownership of a telecommunications facility, the assumption by the transferee of the indemnity of the provider or company and, if applicable, the designation of the State of Nevada, the Department and its officers, agents and employees as beneficiaries of the surety bond and as parties who may bring an action on the surety bond if the indemnity of the provider or company is not adequate.

     3. If the Department does not have a fee interest in a state highway or right-of-way and the application for the occupancy permit does not relate to an existing telecommunications facility, the provider of telecommunications or community antenna television company shall provide verification that it has exercised due diligence and an explanation of the factual or legal basis that supports the right of the provider or company to occupy the state highway or right-of-way.

     (Added to NAC by Dep’t of Transportation by R082-01, eff. 11-1-2001)