Dominoes falling from ID-HB.640

A. Idaho Code: Title 40 Highways and Bridges

Chapter 1 Definitions (source)

40-120. Definitions

. . .

(4) “Single countywide highway district” means all public highways within the county, including those within all cities of the county, but excepting those within the state highway system and those under federal control.

(5) “State highway system” means the principal highway arteries in the state, including connecting arteries and extensions through cities, and includes roads to every county seat in the state.

(6) “State law” means a provision of the constitution or statutes of this state, or an ordinance, rule or regulation enacted or adopted by an agency or political subdivision of this state pursuant to the constitution or statutes.

(8) “Street” means a thoroughfare, alley, highway or a right-of-way that may be open for public use but is not part of a public highway system nor under the jurisdiction of a public highway agency.

B. Idaho Code: Title 61 Public Utility Regulation

Chapter 1: Public Utilities Law — Application and Definitions (source)

61-129. Public utility.

The term “public utility” when used in this act includes every common carrier, pipeline corporation, gas corporation, electrical corporation, telephone corporation and water corporation, as those terms are defined in this chapter and each thereof is hereby declared to be a public utility and to be subject to the jurisdiction, control and regulation of the commission and to the provisions of this act. The term “public utility” as used in this act shall cover cases: (1) Where the service is performed and the commodity delivered directly to the public or some portion thereof, and where the service is performed or the commodity delivered to any corporation or corporations, or any person or persons, who in turn, either directly or indirectly or mediately or immediately, performs the services or delivers such commodity to or for the public or some portion thereof; and (2) Where a pipeline corporation delivers the commodity to any corporation, person, their lessees, receivers or trustees regardless of whether it offers the pipeline service or commodity to the public or some portion thereof. Such pipeline shall be subject to the safety supervision and regulation of the commission only, unless and until such pipeline corporation makes application to the commission to be regulated generally as a public utility.

C. Idaho HB.640

“Idaho Broadband Dig Once and Right-of-Way Act”

  • Source & Bill Text
  • What the Wireless Industry cannot get at the Federal level, they attempt to get at the State Level
  • Wireless Industry pens bills that broaden definitions to give them additional benefits
  • Idaho HB.640 is as bad as the other ALEC-written so-called “small” Wireless Telecommunications Facilities (sWTFs) Deployment bills
  • At the beginning of the 2022 Legislative Session, wireless industry authored legislation was introduced seeking access to State Highway System ROW for broadband infrastructure
  • Legislative intent is for the Idaho Transportation Department (ITD) to develop rules, standards and policies consistent with the “Dig Once Policy”
  • The goal is to coordinate installation of broadband infrastructure on highway ROW, and during ITD sponsored road construction projects
  • The Wireless Industry is wrapping themselves up in a “Blanket of Broadband”, pretending that Wireless Broadband and Wireline Broadband are Functionally Equivalent Services, but they are NOT, as we can read here

D. Result of HB.640: Idaho Dept of Transportation RuleMaking

IDT Contacts

Ramon Hobdey-Sanchez

  • Project Manager, Office of Government Affairs
  • 208-334-8810

Robert Beachler

  • Broadband Program Manager, Division of Highways, Planning Services Section
  • 208-772-1216

Link to Utility Accommodation (Broadband) Rulemaking

  • Per the Idaho Legislature’s passage of HB640aaS-2022, ITD is initiating the negotiated rulemaking process to update the policies and procedures impacted by the State’s new Dig Once Policy.
  • ITD incorporates by reference the 2022 Edition of the Utility Accommodation Policy in IDAPA Title 39: 39.03.43 – Rules Governing Utilities on State Highway Right-of-Way
  • 2022 Re-Definition of Highway (see how broad . . .):

“The entire width between the boundary lines of every main traveled way publicly maintained when any part is open to use by the public for vehicular travel, with jurisdiction extending to the adjacent property line, including sidewalks, shoulders, berms, and rights-of-way not intended for motorized traffic. The term “street” is interchangeable with highway. Also, roads, streets, alleys, and bridges laid out or established for the public or dedicated or abandoned to the public. Highways shall include necessary culverts, sluices, drains, ditches, waterways, embankments, retaining walls, bridges, tunnels, grade separation structures, roadside improvements, adjacent lands, or interests lawfully acquired, pedestrian facilities, and any other structures, works, or fixtures incidental to the preservation or improvement of the highways. Roads laid out and recorded as highways, by order of a board of commissioners, and all roads used as such for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public, or located and recorded by order of a board of commissioners, are highways.

  • 2022 Definition of Small Wireless Facilities (right out of ALEC/CTIA documents):

(1) The facilities—

  • (i) are mounted on structures 50 feet or less in height including their antennas as defined in 47 C.F.R. 1.1320 (d), or
  • (ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or
  • (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. §1.1320(d)), is no more than three cubic feet in volume

(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

(4) The facilities do not require antenna structure registration under 47 C.F.R. § 17.4;

(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R §1.1307(b).

Idaho Broadband Legislation

  • Link to [HB640aaS-2022]: Idaho Broadband Dig Once and Right-of-Way Act
  • Link to Idaho Broadband Advisory Board]
  • Link to HB.127 (2021)
  • Link to Governor Little accepts Idaho Broadband Task Force recommendations (2019)

IDT 2021-2022 Rulemaking Activity

  • Updates are published here:; click on link titled “Utility Accommodation (Broadband) Rulemaking” to reveal the list of documents
  • ITD held broadband utility accommodation rulemaking during the summer and fall of 2021
  • IDAPA 39.03.43 – Rules Governing Utilities
  • Updated Utility Accommodation Policy (UAP)
  • Pursued rulemaking to accommodate Small Wireless Facilities (SWF)
  • Rulemaking regarding fixed wireline broadband paused
  • Proposed SWF rules approved by the Idaho Transportation Board and State Legislature
  • New rule adopts FCC SWF fee structure and “shot clocks”
  • Permits issued by Districts
  • Now updating rules for 2023 — written public comments due by Sept 28, 2022

IDT 2021-2022 Rulemaking Documents

  • Link to 2023 Utility Accommodation Policy Draft #1
  • Link to 2023 Utility Accommodation Policy Draft #2
  • Link to ITD Shared Resource Agreement Template 2022
  • Link to ITD SWF Agreement Template 2022
  • Link to Utility Accommodation Policy (2022)
  • Link to Guide for Utility Management (Jan. 2012)

IDT 2021-2022 Meeting Documents

  • Link to Broadband Rulemaking Presentation(6.13.22)
  • Link to Meeting Transcript (6.13.22)
  • Link to June 2022 Rulemaking Comments
  • Link to Broadband Rulemaking Presentation (7.11.22)
  • Link to Meeting Transcript (7.11.22)
  • Link to July 2022 Rulemaking Comments