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LEGISLATURE OF THE STATE OF IDAHO Sixty-seventh Legislature First Regular Session – 2023

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AN ACT RELATING TO THE IDAHO BROADBAND DIG ONCE AND RIGHT-OF-WAY ACT;

• AMENDING SECTION 40-516, IDAHO CODE, TO PROVIDE FOR LOCAL CONTROL OF CERTAIN INFRASTRUCTURE;
• AMENDING SECTION 40-517, IDAHO CODE, TO DEFINE A TERM AND TO REVISE DEFINITIONS;
• AMENDING SECTION 40-518, IDAHO CODE, TO PROVIDE FOR A CERTAIN BONDING REQUIREMENT AND LOCAL CONTROL;
• REPEALING SECTION 40-519, IDAHO CODE, RELATING TO A BROADBAND PROVIDER AND FAIR MARKET VALUE;
• AMENDING SECTION 40-520, IDAHO CODE, TO SPECIFY CERTAIN REQUIREMENTS REGARDING BROADBAND INFRASTRUCTURE;
• AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-521, IDAHO CODE, TO PROVIDE FOR CERTIFICATION OF RADIO FREQUENCY EMISSIONS;
• AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-522, IDAHO CODE, TO PROVIDE FOR AGREEMENTS BETWEEN PROVIDERS AND THE DEPARTMENT;
• AMENDING CHAPTER 5, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-523, IDAHO CODE, TO PROVIDE A BOND REQUIREMENT; AND
• DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE.

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

SECTION 1.

That Section 40-516, Idaho Code, be, and the same is hereby amended 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, while maintaining local control of such infrastructure.

SECTION 2.

That Section 40-517, Idaho Code, be, and the same is hereby amended to read as follows:

40-517. Definitions.

40-517. DEFINITIONS. 40-523, Idaho Code:

As used in sections 40-515 through 40-520 40-523, 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 minimum transmission speed of one hundred (100) megabits per second for downloads and twenty (20) megabits 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:

• (a) 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, or internet service provider; or

• (b) Builds broadband infrastructure, including but not limited to a port, nonprofit organization, 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 as defined in section 40-120, Idaho Code.

(7) "Local authority" means a city or county of this state.

(7) (8) "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) fifty (50) or more linear feet or the maximum distance allowed by local ordinance.

SECTION 3.

That Section 40-518, Idaho Code, be, and the same is hereby amended 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, restrictions, or provisions prescribed pursuant to this subsection may shall include but need not be limited to liability provisions including a ten million dollar ($10,000,000) aggregate and one million dollar ($1,000,000) per occurrence liability bond with no exclusions for health effects, requirements related to the financial responsibilities for future relocation of broadband infrastructure if relocation is necessary, and indemnification provisions, requirements for periodic testing of emissions levels to verify compliance with federal communications commission requirements, compliance with the federal Americans with disabilities act (ADA), 42 U.S.C. 12101 et seq., including a requirement to report ADA complaints to the department and local authorities, compliance with the national environmental policy act (NEPA), and compliance with any and all applicable state and federal laws and regulations. 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, local ordinance, 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 shall preserve local zoning control over the rights of way that pass through urban areas.

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

(8) (9) 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. Consistent with the "Dig Once Policy," the department shall issue rules that will restrict speculative practices that may unduly impact and congest the department’s rights-of-way;
• (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)(10) 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 or that violates a local ordinance.

(11) The department will encourage use of wired systems because they provide faster, more efficient internet service, have a longer life by as much as ten (10) times, are more cost effective, require less power, and are safer for humans and the environment.

SECTION 4.

That Section 40-519, Idaho Code, be, and the same is hereby repealed.

SECTION 5.

That Section 40-520, Idaho Code, be, and the same is hereby amended to read as follows:

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

(1) Except as provided in subsection (5) of this section, t 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 only pursuant to subsections (5) and (7) of this section.

(2) The department shall enter into a license 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 any broadband infrastructure purchased at market value with its own funds, but shall not own any broadband infrastructure purchased with public funds; and
• (f) Shall specify that the use of the rights-of-way shall be nonexclusive.;
• (g) Shall guarantee the rights of entities that have existing interests in the rights-of-way;
• (h) Shall enable local public private partnerships to develop and own infrastructure in the right-of-way at no cost; and
• (i) Shall recommend that local authorities own the broadband infrastructure if feasible.

(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, or that violates a local ordinance.

(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, with conditions for initial certification of compliance with applicable radiofrequency radiation limits and random radiofrequency testing, including limits on power output and periodic testing thereof;
• (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 otherwise limit the authority of the department over public rights-of-way.

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 40-521, Idaho Code, and to read as follows:

40-521. CERTIFICATION OF RADIO FREQUENCY EMISSIONS.

(1) Within forty-five (45) days of initial operation or a substantial modification of a personal wireless service facility, the owner and/or operator of each telecommunications antenna shall submit to the appropriate administrator of the department as well as the planning administrator of the local authority in which the facility is located a written certification by a licensed professional engineer, sworn to under penalty of perjury, that the facility’s radio frequency emissions comply with the limits codified within 47 CFR 1.1310(e)(1).

(2) The engineer shall measure the emissions of the approved facility, including the cumulative impact from other nearby facilities, and determine if such emissions are within the limits described in subsection (1) of this section. A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s maximum permissible exposure limits shall be submitted to the local authority’s planning administrator.

(3) If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certification provided by the engineer who prepared the original report.

(4) The state of Idaho and the local authority where the facility is located may require, at the applicant’s expense, independent verification of the results of the analysis.

(5) At the operator’s expense, the state of Idaho and the local authority where the facility is located may retain an engineer to conduct random unannounced radiofrequency radiation testing of such facilities to ensure the facility’s compliance with the limits established in subsection (1) of this section.

(6) The state of Idaho and the local authority where the facility is located may cause such random testing to be conducted as often as the they deem appropriate. However, they may not require the owner and/or operator to pay for more than one test per facility per calendar year unless such testing reveals that one or more of the owner and/or operators facilities are exceeding the limits set forth in subsection (1) of this section, in which case the state of Idaho and the local authority where the facility is located shall be permitted to demand that the facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance.

(7) If the state of Idaho or the local authority where the facility is located shall at any time find that there is good cause to believe that a personal wireless service facility and/or one or more of its antennas are emitting radiofrequency radiation at levels in excess of the legal limits set forth in subsection (1) of this section, then the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals for such facility and/or facilities should not be revoked pursuant to a local authority hearing process or the department’s administrative hearing process pursuant to the administrative procedure act.

(8) A local authority shall have the power to impose a fine of not less than $1,000, nor more than $5,000 for a violation of this section. In the case of a second offense within less than five (5) years, a local authority shall be authorized to impose a minimum fine of five thousand dollars ($5,000) but not more than twenty five thousand dollars ($25,000). In the event that an owner or operator of one (1) or more personal wireless facilities is found to violate this section three (3) or more times within any five (5) year period, then, in addition to revoking any applicable approvals, a local authority shall have the power to render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within its jurisdiction for a period of five (5) years.

SECTION 7.

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 40-522, Idaho Code, and to read as follows:

40-522. AGREEMENTS BETWEEN PROVIDERS AND THE DEPARTMENT.

(1) Except as provided in section 40-520(5), Idaho Code, the department may allow a provider longitudinal access to the right-of-way of a highway for the installation, operation and maintenance of a telecommunication facility.

(2) The department shall enter into an agreement with a provider and issue a permit before granting the provider any longitudinal access under this section or pursuant to the provisions of section 40-520, Idaho Code.

(3) Except as specifically provided by an agreement, a property interest in a right-of-way may not be granted pursuant to this section or the provisions of section 40-520, Idaho Code.

(4) An agreement entered into by the department under this section shall:

• (a) Specify the terms and conditions for renegotiating the agreement.
• (b) Specify maintenance responsibilities for each telecommunication facility.
• (c) Be nonexclusive.
• (d) Be limited to a maximum term of thirty (30) years.

(5) The director shall adopt rules that:

• (a) Govern the installation, operation, and maintenance of a telecommunication facility granted longitudinal access under this section or the provisions of section 40-520, Idaho Code;
• (b) Specify the procedures for establishing an agreement for longitudinal access for a provider; and
• (c) Provide for the relocation or removal of a telecommunication facility for any of the following:
  • (i) Needed changes to a highway.
  • (ii) Expiration of an agreement.
  • (iii) Breach of an agreement.
  • (iv) Specifying criteria for the installation of the department’s own conduit and use of such conduit by broadband providers consistent with this section; and
  • (v) Providing for the relocation or removal of broadband infrastructure by broadband providers for needed changes to a highway on the interstate system, and removal of unused facilities including but not limited to posting a bond to guarantee financing the removal of unused or obsolete facilities including all equipment that comprises any portion or part of the facility, compound and/or complex, as well as any accessory facility or structure, and including the cost of full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein.

SECTION 8.

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 40-523, Idaho Code, and to read as follows:

40-523. BOND REQUIREMENT.

(1) Upon receiving a permit or approval from a local authority and prior to the commencement of installation and/or construction of such facility or any part thereof, the applicant shall file with the state of Idaho and the applicable local authority jointly a bond for a length of no less than three years in an amount equal to or exceeding the estimate of the cost of removal of the facility and all associated structures, fencing, power supply, and other appurtenances connected with the facility. Such bond must be provided within thirty (30) days of the approval date and before any installation or construction begins.

(2) Replacement bonds must be provided ninety (90) days prior to the expiration of any previous bond.

(3) At any time if the state of Idaho or a local authority has good cause to question the sufficiency of the bond at the end of any three-year period, the owner and/or operator of the facility, upon request by the state of Idaho or the local authority, shall provide an updated estimate and bond in the appropriate amount.

(4) Failure to keep the bonds in effect is cause for removal of the facility at the owner’s expense. A separate bond will be required for each facility, regardless of the number of owners or the location.

SECTION 9.

An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after July 1, 2023.