2022 Idaho HB-640

LEGISLATURE OF THE STATE OF IDAHO
Sixty-sixth Legislature
Second Regular Session, 2022

IN THE HOUSE OF REPRESENTATIVES

HOUSE BILL NO. 640

Source

BY TRANSPORTATION AND DEFENSE COMMITTEE

AN ACT RELATING TO THE IDAHO BROADBAND DIG ONCE AND RIGHT-OF-WAY ACT; AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-515, IDAHO CODE, TO PROVIDE A SHORT TITLE; AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-516, IDAHO CODE, TO PRO- VIDE LEGISLATIVE INTENT REGARDING A DIG ONCE POLICY; AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-517, IDAHO CODE, TO DEFINE TERMS; AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-518, IDAHO CODE, TO ESTABLISH PROVISIONS REGARDING A DIG ONCE POLICY AND PROJECT IDENTIFICATION; AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-519, IDAHO CODE, TO PROVIDE THAT BROADBAND PROVIDERS ACTING IN ACCORDANCE WITH THE DIG ONCE POLICY SHALL NOT BE ASSESSED FAIR MARKET VALUE; AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-520, IDAHO CODE, TO ESTABLISH PROVISIONS REGARDING RIGHTS-OF-WAY FOR BROADBAND; AND DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE.


Be It Enacted by the Legislature of the State of Idaho:

SECTION 1.

That Chapter 5, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40—515, Idaho Code, and to read as follows:

40-515. SHORT TITLE.

This section through section 40—520, Idaho Code, shall be known and may be cited as the Idaho Broadband Dig Once and Right—of—Way Act.

SECTION 2.

That Chapter 5, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40—516, Idaho Code, and to read as follows:

40-516. LEGISLATIVE INTENT: DIG ONCE POLICY.

(1) It is the intent of the legislature to recognize that the citizens of the state live and work in a data—driven society and that the connectivity in Idaho’s urban and rural areas are key for a thriving Idaho economy. Broadband is a vital component in accomplishing connectivity throughout Idaho.

(2) The legislature recognizes and hereby declares that broadband service throughout the entire state is in the overall public interest for the state of Idaho in furtherance of the social and economic development of the state, and the use of highway rights—of—way to support broadband infrastructure and a “Dig Once Policy” furthers the overall public interest.

(3) It is the intent of the legislature that the Idaho transportation department develop rules, standards, and policies consistent with the “Dig Once Policy” to facilitate the expansion of broadband with the cost—efficient, orderly, and coordinated installation of broadband infrastructure on highway rights—of—way and during roadway construction.

SECTION 3.

That Chapter 5, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40—517, Idaho Code, and to read as follows:

40-517. DEFINITIONS.

As used in sections 40—515 through 40—520, Idaho Code:

(1) “Broadband” means wide bandwidth communication transmissions allowing high speed internet access with an ability to simultaneously transport multiple signals and traffic types at a maximum transmission speed of one hundred (100) megabits [down] per second for downloads and twenty (20) megabits [up] per second for uploads.

(2) “Broadband infrastructure” means networks of deployed telecommunications equipment, conduit, and technologies necessary to provide broadband and other advanced telecommunications services to wholesalers or end users, including but not limited to private homes, businesses, commercial establishments, schools, or public institutions.

(3) “Broadband provider” means any entity that provides broadband services, including but not limited to a telecommunications provider, cable service provider, broadband provider, cellular provider, political subdivision that provides broadband services, electric cooperative that provides broadband services, electric utility that provides broadband services, state government entity that provides broadband services, tribal government that provides broadband services, internet service provider, or private—public partnership established for the purpose of expanding broadband in the state.

(4) “Department” means the Idaho transportation department.

(5) “Dig Once Policy” means a policy or practice that minimizes the number and scale of excavations or construction and costs when installing broadband infrastructure in highway rights—of—way.

(6) “Highway” means a road that is part of the state highway system.

(7) “Longitudinal access” means access to or use of any part of a right-of—way of a highway that extends generally parallel to the right—of—way for a total of one hundred (100) or more linear feet.

SECTION 4.

That Chapter 5, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40—518, Idaho Code, and to read as follows:

40-518. DIG ONCE POLICY NOTIFICATION AND PROJECT IDENTIFICATION.

(1) The department shall develop on a competitively neutral basis a registry of broadband providers interested in installing broadband infrastructure along a highway. The department shall update the registry no less than once per year.

(2) The department shall identify potential projects managed by the department, either self—performed by the department or performed under Contract, on highways under the department’s jurisdiction for which notice under subsection (3) of this section is required. Potential projects eligible for identification shall include projects that Involve the construction of underground infrastructure, road construction, or other work that will result in longitudinal access that could reasonably include, or prepare for, the installation of broadband infrastructure consistent with the “Dig Once Policy.”

(3) For each project identified under subsection (2) of this section, the department shall timely notify the broadband providers on the registry established under subsection (1) of this section:

  • (a) That the project has been identified as suitable for coordination with broadband providers;
  • (b) of the broadband provider’s opportunity to coordinate with the department to accommodate the installation of broadband infrastructure; and
  • (c) of the process for submitting a statement of interest to coordinate with the department on the project.

(4) The department shall provide each broadband provider that receives a notice under subsection (3) of this section no less than thirty (30) days from the date the notice is issued to submit to the department a statement of interest to coordinate with the department.

(5) For each project for which the department provides notice under this section, the department shall engage with each broadband provider that submits a statement of interest to determine whether accommodation of installation of broadband infrastructure is appropriate.

(6) The department shall make the final determination of the suitability of a project to include installation of broadband infrastructure and may prescribe any conditions, requirements, restrictions, or other provisions in furtherance of the “Dig Once Policy. Conditions, requirements, restricions, or provisions prescribed pursuant to this subsection may include but need not be limited to liability provisions, requirements related to the financial responsibilities for future relocation of broadband infrastructure if relocation is necessary, and indemnification provisions. The department may deny the installation of broadband infrastructure if the installation hinders or obstructs highway construction, maintenance, or operational safety, is contrary to statute or rule, or unduly delays or interferes with construction, maintenance, joint trenching projects, or the repair or construction of water, wastewater, electrical, or gas line facilities.

(7) The department may install conduit for its own use where appropriate.

(8) The department shall promulgate rules for carrying out the provisions of this section that are nondiscriminatory, neutral, fair, and objective and that promote competition among broadband providers. Rules shall include, at a minimum:

  • (a) Procedures consistent with the “Dig Once Policy” for processing and reviewing statements of interest received from a broadband provider by the department;
  • (b) A broadband provider shall be charged for the actual cost incurred by the department as a result of the installation of a broadband provider’s broadband infrastructure. If there is more than One (1) broadband provider installing broadband infrastructure, then each broadband provider shall share equally in the common charges of the installation of broadband infrastructure, including but not limited to trenching, boring, traffic controls, and make—ready costs;
  • (c) Criteria for identifying projects that would be suitable for the placement of broadband infrastructure;
  • (d) Criteria for the installation of the department’s own conduit. Rules may allow use of such conduit by broadband providers;
  • (e) Procedures and forms for permitting processes; and
  • (f) A contested case administrative appeals process, pursuant to the Idaho administrative procedure act, chapter 52, title 67, Idaho Code.

(9) The department may not grant any longitudinal access under this section that results kn a significant compromise of the safe, efficient, and convenient use of a highway for the traveling public.

SECTION 5.

That Chapter 5, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40—519, Idaho Code, and to read as follows:

40-519. PROVIDER SHALL NOT BE ASSESSED FAIR MARKET VALUE.

A broadband provider installing broadband infrastructure in accordance with sections 40-515 through 40-520, Idaho Code, shall not be assessed fair market value.

SECTION 6.

That Chapter 5, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40—520, Idaho Code, and to read as follows:

40-520. RIGHTS-OF-WAY FOR BROADBAND.

(1) Except as provided in subsection (5) of this section, the department shall allow a broadband provider longitudinal use and access to the rights—of—way of a highway for the installation, operation, and maintenance of broadband infrastructure.

(2) The department shall enter into a 1icense agreement with a broadband provider and issue a permit before granting it any longitudinal access under this section. Except as specifically provided by the agreement, a property interest in a right—of—way may not be granted under the provisions of this section. An agreement entered into by the department under this section:

  • (a) Shall include terms and conditions that are nondiscriminatory and are consistent with the public policy promoting the expansion of broadband infrastructure in Idaho, such as liability provisions, requirements related to the financial responsibilities for future relocation of underground broadband infrastructure if relocation is necessary, and indemnification provisions;
  • (b) Shall specify maintenance responsibilities for broadband infrastructure being placed;
  • (c) May require that the department be allowed to utilize the broadband infrastructure only for public safety warnings, road condition notifications, and amber alerts to motorists on highways;
  • (d) May require that the broadband provider install conduit for nonexclusive use, in which the cost of the project shall be shared proportionally. Alternatively, if the department requires the broadband provider to install only one (1) conduit of equal or smaller size of the conduit being installed exclusively for internal department purposes, then the department shall be responsible only for the costs of the additional materials and labor for the installation of its own conduit. The department must keep all documents and records regarding the internal use of the conduit and make public such documents if requested. The department may not allow the use of its internal conduit to any other entity. If the department allows the use of internal conduit to another entity, then the department shall reimburse the broadband provider for half of the project costs;
  • (e) Shall specify that the broadband provider shall own its broadband infrastructure; and
  • (f) Shall specify that the use of the rights—of—way shall be nonexclusive.

(3) A broadband provider shall be responsible for the costs of installing its own broadband infrastructure on the department’s right—of—way. If there is more than one (1) broadband provider installing broadband infrastructure at the same project, then the broadband provider IS responsible for its pro rata share of the cost.

(4) The department shall require the same fees from a broadband provider under this section for longitudinal access to the right—of—way as a public utility defined under section 61—129, Idaho Code. However, fees charged to a cable provider shall be in accordance with applicable federal law.

(5) The department may not grant any longitudinal access under this section that results in a significant compromise of the safe, efficient, and convenient use of a highway for the traveling public.

(6) The department may install conduit for its own use where appropriate or in support of expanding broadband infrastructure in the state of Idaho.

(7) The department shall promulgate rules:

  • (a) Governing the installation, operation, and maintenance of broadband infrastructure granted longitudinal access pursuant to this section;
  • (b) Specifying the procedures for establishing an agreement for longitudinal access for a broadband provider;
  • (c) Specifying criteria for the installation of the department’s own conduit and use of such conduit by broadband providers consistent with this section; and
  • (d) Providing for the relocation or removal of broadband infrastructure for needed changes to a highway on the interstate system.

(8)Nothing in section 40-515, Idaho Code, through this section is intended to preempt, diminish, or otherwxse limit the authority of the department over public rights—of—way.

SECTION 7.

An emergency existing therefore, which emergency is hereby declared to exist, this act shall be in full force and effect on and after. July 1, 2022.