Rights-of-Way Permits for Broadband Deployment

Current law allows an entity that wants to access public rights-of-way (rights-of-way) for the deployment of broadband to enter into a public-private initiative agreement with the department of transportation (department) for the entity's access to the rights-of-way. The bill creates an alternative method for entities that want to access rights-of-way for the deployment of broadband, whereby the department may issue a permit and impose a permit fee for access to rights-of-way for the deployment of broadband. The bill specifies that an entity that wants to access rights-of-way for the deployment of broadband may pursue either the permit application and fee process created in the bill or the existing public-private initiative agreement process.

In issuing permits that grant access to rights-of-way, the bill:

• Requires the department to allow competitively neutral and nondiscriminatory access to broadband providers seeking to use rights-of-way for the deployment of broadband;
• Requires the department to determine the form and manner of the permit application process and to approve or deny a permit application within 30 days;
• Specifies that the term of any permit issued pursuant to the bill is 30 years and that the department cannot assert ownership of broadband infrastructure except for when a permit recipient abandons the broadband infrastructure;
• Prohibits the department from requiring the permit recipient to lay additional fiber for use by the department or any third party;
• Prohibits the department from requiring the permit recipient to provide any in-kind goods or services as a condition of granting access to rights-of way; and
• Requires the department to produce an anticipated annual budget for the costs associated with the permit application process and an anticipated annual forecast of the revenue that the department will generate from the permit fees.

The department may impose a one-time permit processing fee in connection with an application to gain access to rights-of-way for the deployment of broadband (permit processing fee) so long as the fee does not exceed the department's actual costs in connection with granting or administering the permits. The department is prohibited from imposing any other fee or charge for access to rights-of-way for the deployment of broadband.

The department is also prohibited from including any charge in the permit processing fee to receive compensation for the fair market value of rights-of-way or access to rights-of-way; except that if the attorney general certifies in writing to the transportation commission that excluding fair market value in the permit processing fee violates federal law and that the violation will result in the loss of federal money apportioned to the state, the department is required to include fair market value in the permit processing fee. In such case, the department is required to set the rate of fair market value at a level that does not exceed the lowest rate of fair market value established by any other state for access to that state's rights-of-way for the deployment of broadband.

(Note: This summary applies to this bill as introduced.)