Legislation

Proposed Legislation

Idaho Senate S1318, Introduced by Senator Scott Herndon

LEGISLATURE OF THE STATE OF IDAHO Sixty-seventh Legislature First Regular Session – 2024

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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; 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 is key for a thriving Idaho economy. Wired Backbone and Wired Middle-Mile Broadband are vital components in accomplishing Broadband connectivity throughout Idaho and are the focus of this bill. Whether Last-Mile Broadband delivery to the premises is achieved via wired or wireless infrastructure is a choice that shall be governed by the ordinances of local authorities. Last-Mile wired broadband infrastructure provides internet service that is faster, far more energy-efficient and far less polluting than Last-Mile wireless broadband infrastructure which is why this choice must be made by local authorities.

(2) The legislature recognizes and hereby declares that a “Dig Once Policy” for Wired Backbone and Wired Middle-Milefiber optic infrastructures 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures with the cost-efficient, orderly, and coordinated installation of Wired Backbone and Wired Middle-Milefiber optic infrastructures in highway rights-of-way and during roadway construction, while maintaining local control of such infrastructure, pursuant to Idaho Code 67-6502, LOCAL LAND USE PLANNING, Purpose. The purpose of this act shall be to promote the health, safety and general welfare of the people of the state of Idaho.

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 40-520, Idaho Code:

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

(1) Broadband infrastructure can be categorized into four groups based on distance covered, from longest to shortest distance and means of delivery (wired or wireless):

(a) Wired Backbone Broadband Infrastructure: Often consisting of high-capacity fiber-optic cables laid over hundreds or thousands of miles to connect countries, states, and/or regions.

(b) Wired Middle-Mile Broadband Infrastructure: Often consisting of fiber-optic cables laid over tens or hundreds of miles that, once connected to by an Internet service provider, can help deliver high-speed Internet service from the Backbone to the Last-Mile.

(c) Wired Last-Mile Broadband Infrastructure: Often consisting of fiber optics or coaxial cables that connect directly from the Middle-Mile to the premises for wired broadband information service to wholesalers or end users, including but not limited to private homes, businesses, commercial establishments, schools, or public institutions..

(d) Wireless Last-Mile Broadband Infrastructure: Often consisting of poles, antennas, and other components to send radio signals from the Middle-Mile to dish antennas or other antennas on premises for wireless telecommunications and broadband information service via satellite or cellular service to wholesalers or end users, including but not limited to private homes, businesses, commercial establishments, schools, or public institutions..

(2) “Broadband Service” means wide high bandwidth communication transmissions allowing high speed internet access with low latency and the 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) one hundred (100) symmetrical megabits per second for uploads.

Classified as information service under Title I of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, & the Federal Communications Commission order FCC 177-166 of 2018.

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

(4) “Dig Once Policy” means a policy or practice that minimizes the number and scale of excavations or construction and costs when installing broadband infrastructure Wired Backbone and Wired Middle-Milefiber optic infrastructures in highway rights-of-way.

(5) “Highway” means a road that is part of the state highway system as defined in section 40-120, Idaho Code.

(6) “Local authority” means a town, city or county of this state.

(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 extending from the edge of the right-of-way nearest the highway for a total of twenty (20) linear feet, perpendicular to this inside edge of the right-of-way, or the maximum distance allowed by local ordinance.

(8) “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, or internet service provider.

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 Wired Backbone and Wired Middle-Milefiber optic infrastructures 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 providers on the registry established under subsection (1) of this section:

  • (a) That the project has been identified as suitable for coordination with providers;
  • (b) Of the 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 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 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures 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 shall 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, indemnification provisions, compliance with the national environmental policy act (NEPA), 42 U.S.C. 4321 et seq., and compliance with any and all applicable state and federal laws and regulations. The department may deny the installation of Wired Backbone and Wired Middle-Milefiber optic infrastructures if the installation hinders or obstructs highway construction, maintenance, or operational safety, is contrary to statute, or rule, or 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 local jurisdictions.

(8) The department may install conduit for its own use where appropriate or in support of expanding Wired Backbone and Wired Middle-Milefiber optic infrastructures in the state of Idaho.

(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 Wired Backbone and Wired Middle-Milefiber optic infrastructure 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 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 provider shall be charged for the actual cost incurred by the department as a result of the installation of the Wired Backbone and Wired Middle-Milefiber optic infrastructures. If there is more than one (1) broadband provider installing Wired Backbone and Wired Middle-Milefiber optic infrastructures, then each broadband provider shall share equally in the common charges of the installation of broadband the 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures;
  • (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.

(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.

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) 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures only pursuant to subsections (5) and (6) of this section.

(2) The department shall enter into a license agreement with a 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures in Idaho, such as liability provisions, requirements related to the financial responsibilities for future relocation of underground Wired Backbone and Wired Middle-Milefiber optic infrastructures if relocation is necessary, and indemnification provisions;
  • (b) Shall specify maintenance responsibilities for Wired Backbone and Wired Middle-Milefiber optic infrastructures being placed;
  • (c) May require that the department be allowed to utilize the Wired Backbone and Wired Middle-Milefiber optic infrastructures only for public safety warnings, road condition notifications, and amber alerts to motorists on highways;
  • (d) May require that the 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; the broadband providers want to keep this clause]
  • (e) Shall specify that the use of the rights-of-way shall be nonexclusive.;
  • (f) Shall recommend that local authorities own the broadband infrastructure if feasible.
  • (g) Shall guarantee the rights of entities that have existing interests in the rights-of-way.

(3) A provider shall be responsible for the costs of installing its own Wired Backbone and Wired Middle-Milefiber optic infrastructures in the department’s right-of-way. If there is more than one (1) broadband provider installing Wired Backbone and Wired Middle-Milefiber optic infrastructures at the same project, then the provider is responsible for its pro rata share of the cost.

(4) The department shall require the same fees from a 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 Wired Backbone and Wired Middle-Milefiber optic infrastructures in the state of Idaho.

(7) The department shall promulgate rules:

  • (a) Governing the installation, operation, and maintenance of Wired Backbone and Wired Middle-Milefiber optic infrastructures granted longitudinal access pursuant to this section.
  • (b) Specifying the procedures for establishing an agreement for longitudinal access for a provider;
  • (c) Specifying criteria for the installation of the department’s own conduit and use of such conduit by providers consistent with this section; and
  • (d) Providing for the relocation or removal of Wired Backbone and Wired Middle-Milefiber optic infrastructures 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.

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, 2024.