Second Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
INTRODUCED
LLS NO. 24-0283.01 Nicole Myers x4326
SENATE BILL 24-091
Senate Committees House Committees
Transportation & Energy
A BILL FOR AN ACT
C
ONCERNING THE CREATION OF AN ADDITIONAL PROCESS BY WHICH101
ENTITIES MAY GAIN ACCESS TO PUBLIC RIGHTS -OF-WAY FOR THE102
DEPLOYMENT OF BROADBAND .103
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
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
SENATE SPONSORSHIP
Pelton B. and Mullica,
HOUSE SPONSORSHIP
Martinez and Catlin,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing law.
Dashes through the words or numbers indicate deletions from existing law. 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.
SB24-091
-2- Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. In Colorado Revised Statutes, add part 2 to article2
5.5 of title 38 as follows:3
PART 24
PERMITTING FOR PUBLIC 5
RIGHTS-OF-WAY FOR BROADBAND DEPLOYMENT6
38-5.5-201. Public rights-of-way - use for deployment of7
broadband - definition. A
S USED IN THIS PART 2, UNLESS THE CONTEXT8
OTHERWISE REQUIRES, "DEPARTMENT" MEANS THE DEPARTMENT OF9
TRANSPORTATION CREATED IN SECTION 43-1-103 (1).10
38-5.5-202. Public rights-of-way - use for deployment of11
broadband - department of transportation permitting process.12
(1) (a) T
HE DEPARTMENT SHALL ALLOW COMPETITIVELY NEUTRAL AND13
NONDISCRIMINATORY ACCESS TO BROADBAND PROVIDERS SEEKING TO USE14
PUBLIC RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND .15
(b) A
NY ENTITY THAT INTENDS TO GAIN ACCESS TO PUBLIC16
RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND MAY CHOOSE TO17
PURSUE EITHER THE PERMIT AND FEE STRUCTURE PROCESS SPECIFIED IN18
THIS PART 2 OR THE PUBLIC-PRIVATE INITIATIVE AGREEMENT PROCESS19
SPECIFIED IN PART 12 OF ARTICLE 1 OF TITLE 43 TO GAIN ACCESS TO PUBLIC20
RIGHTS-OF-WAY.21
(c) T
HE PROVISIONS OF PART 12 OF ARTICLE 1 OF TITLE 43 DO NOT22
APPLY TO THE PERMIT AND FEE STRUCTURE PROCESS CREATED IN THIS23
PART 2.24
(2) (a) T
HE DEPARTMENT SHALL DETERMINE THE FORM AND25
MANNER OF THE PERMIT APPLICATION PROCESS TO GAIN ACCESS TO PUBLIC26
SB24-091-3- RIGHTS-OF-WAY FOR BROADBAND DEPLOYMENT . THE DEPARTMENT SHALL1
EITHER APPROVE OR DENY A PERMIT APPLICATION THAT IT RECEIVES2
PURSUANT TO THIS PART 2 WITHIN THIRTY DAYS OF RECEIPT OF THE3
APPLICATION.4
(b) T
HE DEPARTMENT SHALL PROVIDE AN ACCEPTANCE OR DENIAL5
OF A PERMIT PURSUANT TO SUBSECTION (2)(a) OF THIS SECTION TO THE6
PERMIT APPLICANT IN WRITING AND SHALL IDENTIFY SPECIFIC REASONS7
FOR THE APPROVAL OR THE DENIAL OF THE PERMIT APPLICATION . THE8
DEPARTMENT SHALL ALSO MAKE AVAI LABLE TO THE PUBLIC THE WRITTEN9
APPROVAL OR DENIAL REQUIRED BY THIS SUBSECTION (2)(b) IN AN ONLINE10
ELECTRONIC FORMAT.11
(3) T
HE TERM OF A PERMIT ISSUED BY THE DEPARTMENT FOR12
ACCESS TO PUBLIC RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND13
PURSUANT TO THIS PART 2 IS THIRTY YEARS. THE DEPARTMENT SHALL NOT14
ASSERT OWNERSHIP OF ANY BROADBAND INFRASTRUCTURE DURING OR15
AFTER THE TERM OF THE PERMIT EXCEPT IN THE CASE THAT A PERMIT16
RECIPIENT ABANDONS THE BROADBAND INFRASTRUCTURE .17
(4) (a) W
HEN ISSUING A PERMIT FOR ACCESS TO PUBLIC18
RIGHTS-OF-WAY FOR BROADBAND DEPLOYMENT PURSUANT TO THIS PART19
2,
THE DEPARTMENT SHALL NOT REQUIRE THE PERMIT RECIPIENT TO LAY20
ADDITIONAL FIBER FOR USE BY THE DEPARTMENT OR ANY THIRD PARTY .21
(b) T
HE DEPARTMENT SHALL NOT REQUIRE THE PERMIT RECIPIENT22
TO PROVIDE ANY IN-KIND GOODS OR SERVICES AS A CONDITION OF23
GRANTING ACCESS TO PUBLIC RIGHTS -OF WAY FOR BROADBAND24
DEPLOYMENT.25
(5) T
HE DEPARTMENT SHALL PRODUCE AN ANTICIPATED ANNUAL26
BUDGET FOR THE COSTS ASSOCIATED WITH THE PERMIT APPLICATION27
SB24-091
-4- PROCESS PURSUANT TO THIS PART 2 AND AN ANTICIPATED ANNUAL1
FORECAST OF THE REVENUE THAT THE PERMIT FEE IMPOSED PURSUANT TO2
SECTION 38-5.5-203 WILL GENERATE.3
(6) T
HE TERMS OF ALL PERMITS THAT THE DEPARTMENT ISSUES4
FOR THE USE OF PUBLIC RIGHTS-OF-WAY ARE MATTERS OF PUBLIC RECORD5
AND SHALL BE MADE AVAILABLE UPON REQUEST PURSUANT TO THE6
"C
OLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.7
38-5.5-203. Permit fees - public rights-of-way - use for8
deployment of broadband. (1) T
HE DEPARTMENT MAY IMPOSE A9
ONE-TIME PERMIT PROCESSING FEE IN CONNECTION WITH AN APPLICATION10
TO GAIN ACCESS TO PUBLIC RIGHTS-OF-WAY FOR THE DEPLOYMENT OF11
BROADBAND PURSUANT TO THIS PART 2. OTHER THAN THE PERMIT12
PROCESSING FEE AUTHORIZED IN THIS SUBSECTION (1), THE DEPARTMENT13
SHALL NOT IMPOSE ANY OTHER FEE OR CHARGE FOR ACCESS TO PUBLIC14
RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND .15
(2) A
PERMIT PROCESSING FEE IMPOSED BY THE DEPARTMENT16
PURSUANT TO SUBSECTION (1) OF THIS SECTION MUST BE REASONABLY17
RELATED TO THE COSTS DIRECTLY INCURRED BY THE DEPARTMENT IN18
PROVIDING SERVICES RELATING TO THE GRANTING OR ADMINISTRATION OF19
PERMITS AND, NOTWITHSTANDING ANY OTHER PROVISION OF LAW , MUST20
NOT EXCEED THE DEPARTMENT 'S ACTUAL COSTS IN CONNECTION WITH21
GRANTING OR ADMINISTERING THE PERMITS . THE FEE MUST ALSO BE22
REASONABLY RELATED IN TIME TO THE OCCURRENCE OF THE23
DEPARTMENT'S COSTS.24
(3) I
F THE DEPARTMENT DERIVES ANY REVENUE FROM PERMIT FEES25
THAT EXCEED THE DEPARTMENT 'S COSTS IN PROCESSING SERVICES26
RELATING TO THE GRANTING OR ADMINISTRATION OF PERMITS PURSUANT27
SB24-091
-5- TO THIS PART 2, THE DEPARTMENT SHALL REDUCE THE AMOUNT OF THE1
FEE TO ENSURE THAT THE REVENUE FROM THE FEE DOES NOT EXCEED THE2
DEPARTMENT'S COSTS FOR PROCESSING SERVICES RELATING TO THE3
GRANTING OR ADMINISTRATION OF PERMITS PURSUANT TO THIS PART 2.4
(4) (a) E
XCEPT AS OTHERWISE PROVIDED IN SUBSECTION (4)(b) OF5
THIS SECTION, THE PERMIT FEE FOR ACCESS TO PUBLIC RIGHTS-OF-WAY FOR6
THE DEPLOYMENT OF BROADBAND AS AUTHORIZED IN SUBSECTION (1) OF7
THIS SECTION MUST NOT INCLUDE ANY CHARGE OR ELEMENT TO8
RECAPTURE OR RECEIVE COMPENSATION FOR THE FAIR MARKET VALUE OF9
PUBLIC RIGHTS-OF-WAY OR ACCESS TO PUBLIC RIGHTS-OF-WAY.10
(b) (I) T
HE PERMIT FEE RESTRICTION SPECIFIED IN SUBSECTION11
(4)(a)
OF THIS SECTION DOES NOT APPLY IF THE ATTORNEY GENERAL12
CERTIFIES IN WRITING TO THE TRANSPORTATION COMMISSION CREATED IN13
SECTION 43-1-106 THAT EXCLUDING FAIR MARKET VALUE IN THE PERMIT14
FEE STRUCTURE FOR ACCESS TO PUBLIC RIGHTS -OF-WAY FOR THE15
DEPLOYMENT OF BROADBAND VIOLATES FEDERAL LAW AND THAT SUCH A16
VIOLATION WILL RESULT IN THE LOSS OF FEDERAL MONEY , IN WHOLE OR IN17
PART, APPORTIONED TO THE STATE.18
(II) N
OTWITHSTANDING THE PROVISIONS OF SUBSECTIONS (2) AND19
(3)
OF THIS SECTION, IF THE ATTORNEY GENERAL MAKES THE20
CERTIFICATION SPECIFIED IN SUBSECTION (4)(b)(I) OF THIS SECTION, THE21
DEPARTMENT SHALL SET THE RATE OF FAIR MARKET VALUE AT A LEVEL22
THAT DOES NOT EXCEED THE LOWEST RATE OF FAIR MARKET VALUE23
ESTABLISHED BY ANY OTHER STATE FOR ACCESS TO THAT STATE 'S PUBLIC24
RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND .25
(5) I
N ANY CONTROVERSY CONCERNING THE APPROPRIATENESS OF26
A FEE IMPOSED PURSUANT TO THIS SECTION , THE DEPARTMENT HAS THE27
SB24-091
-6- BURDEN OF PROVING THAT:1
(a) T
HE FEE DOES NOT EXCEED THE DIRECT COSTS INCURRED BY2
THE DEPARTMENT IN CONNECTION WITH GRANTING OR ADMINISTERING THE3
PERMITS FOR ACCESS TO PUBLIC RIGHTS-OF-WAY; AND4
(b) T
HE RATE OF FAIR MARKET VALUE, IF APPLICABLE, IS SET AT A5
LEVEL THAT DOES NOT EXCEED THE LOWEST RATE OF FAIR MARKET VALUE6
ESTABLISHED BY ANY OTHER STATE FOR ACCESS TO THAT STATE 'S PUBLIC7
RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND .8
SECTION 2. In Colorado Revised Statutes, 43-1-1204, add (6)9
as follows:10
43-1-1204. Public-private initiative agreement - definition.11
(6) (a) A
N ENTITY THAT INTENDS TO GAIN ACCESS TO PUBLIC12
RIGHTS-OF-WAY FOR THE DEPLOYMENT OF BROADBAND MAY CHOOSE TO13
USE EITHER THE PUBLIC -PRIVATE INITIATIVE AGREEMENT PROCESS14
SPECIFIED IN THIS PART 12 OR THE PERMIT AND FEE STRUCTURE PROCESS15
SPECIFIED IN PART 2 OF ARTICLE 5.5 OF TITLE 38.16
(b) T
HE PROVISIONS OF PART 2 OF ARTICLE 5.5 OF TITLE 38 DO NOT17
APPLY TO ANY PUBLIC-PRIVATE INITIATIVE AGREEMENT TO GAIN ACCESS18
TO PUBLIC RIGHTS-OF-WAY ENTERED INTO PURSUANT TO THIS PART 12.19
SECTION 3. Safety clause. The general assembly finds,20
determines, and declares that this act is necessary for the immediate21
preservation of the public peace, health, or safety or for appropriations for22
the support and maintenance of the departments of the state and state23
institutions.24
SB24-091
-7-