72-7-108 - Longitudinal telecommunication access in the interstate highway system -- Definitions -- Agreements -- Compensation -- Restrictions -- Rulemaking.
72-7-108. Longitudinal telecommunication access in the interstate highway system-- Definitions -- Agreements -- Compensation -- Restrictions -- Rulemaking.
(1) As used in this section:
(a) "Longitudinal access" means access to or use of any part of a right-of-way of ahighway on the interstate system that extends generally parallel to the right-of-way for a total of30 or more linear meters.
(b) "Statewide telecommunications purposes" means the further development of thestatewide network that meets the telecommunications needs of state agencies and enhances thelearning purposes of higher and public education.
(c) "Telecommunication facility" means any telecommunication cable, line, fiber, wire,conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmittingequipment, receiving equipment, power equipment, or other equipment, system, and device usedto transmit, receive, produce, or distribute via wireless, wireline, electronic, or optical signal forcommunication purposes.
(2) (a) Except as provided in Subsection (4), the department may allow atelecommunication facility provider longitudinal access to the right-of-way of a highway on theinterstate system for the installation, operation, and maintenance of a telecommunication facility.
(b) The department shall enter into an agreement with a telecommunication facilityprovider and issue a permit before granting it any longitudinal access under this section.
(i) Except as specifically provided by the agreement, a property interest in a right-of-waymay not be granted under the provisions of this section.
(ii) An agreement entered into by the department under this section shall:
(A) specify the terms and conditions for the renegotiation of the agreement;
(B) specify maintenance responsibilities for each telecommunication facility;
(C) be nonexclusive; and
(D) be limited to a maximum term of 30 years.
(3) (a) The department shall require compensation from a telecommunication facilityprovider under this section for longitudinal access to the right-of-way of a highway on theinterstate system.
(b) The compensation charged shall be:
(i) fair and reasonable;
(ii) competitively neutral;
(iii) nondiscriminatory;
(iv) open to public inspection;
(v) established to promote access by multiple telecommunication facility providers;
(vi) established for zones of the state, with zones determined based upon factors thatinclude population density, distance, numbers of telecommunication subscribers, and the impactupon private right-of-way users;
(vii) established to encourage the deployment of digital infrastructure within the state;
(viii) set after the department conducts a market analysis to determine the fair andreasonable values of the right-of-way based upon adjacent property values;
(ix) a lump sum payment or annual installment, at the option of the telecommunicationsfacility provider; and
(x) set in accordance with Subsection (3)(f).
(c) (i) The compensation charged may be cash, in-kind compensation, or a combination
of cash and in-kind compensation.
(ii) In-kind compensation requires the agreement of both the telecommunication facilityprovider and the department.
(iii) The department shall, in consultation with the Telecommunications AdvisoryCouncil created in Section 72-7-109, determine the present value of any in-kind compensationbased upon the incremental cost to the telecommunication facility provider.
(iv) The value of in-kind compensation or a combination of cash and in-kindcompensation shall be equal to or greater than the amount of cash compensation that would becharged if the compensation is cash only.
(d) (i) The department shall provide for the proportionate sharing of costs among thedepartment and telecommunications providers for joint trenching or trench sharing based on theamount of conduit innerduct space that is authorized in the agreement for the trench.
(ii) If two or more telecommunications facility providers are required to share a singletrench, each telecommunications facility provider in the trench shall share the cost and benefitsof the trench in accordance with Subsection (3)(d)(i) on a fair, reasonable, competitively neutral,and nondiscriminatory basis.
(e) The market analysis under Subsection (3)(b)(viii) shall be conducted at least everyfive years and any adjustments warranted shall apply only to agreements entered after the date ofthe new market analysis.
(f) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, thedepartment shall establish a schedule of rates of compensation for any longitudinal accessgranted under this section.
(4) The department may not grant any longitudinal access under this section that resultsin a significant compromise of the safe, efficient, and convenient use of the interstate system forthe traveling public.
(5) The department may not pay any cost of relocation of a telecommunication facilitygranted longitudinal access to the right-of-way of a highway on the interstate system under thissection.
(6) (a) Monetary compensation collected by the department in accordance with thissection shall be deposited with the state treasurer and credited to the Transportation Fund.
(b) Any telecommunications capacity acquired as in-kind compensation shall be used:
(i) exclusively for statewide telecommunications purposes and may not be sold or leasedin competition with telecommunication or Internet service providers; and
(ii) as determined by the department after consultation with the TelecommunicationsAdvisory Council created in Section 72-7-109.
(7) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, thedepartment shall make rules:
(a) governing the installation, operation, and maintenance of a telecommunicationfacility granted longitudinal access under this section;
(b) specifying the procedures for establishing an agreement for longitudinal access for atelecommunication facility provider;
(c) providing for the relocation or removal of a telecommunication facility for:
(i) needed changes to a highway on the interstate system;
(ii) expiration of an agreement; or
(iii) a breach of an agreement; and
(d) providing an opportunity for all interested providers to apply for access within openright-of-way segments.
(8) (a) Except for a right-of-way of a highway on the interstate system, nothing in thissection shall be construed to allow a highway authority to require compensation from atelecommunication facility provider for longitudinal access to the right-of-way of a highwayunder the highway authority's jurisdiction.
(b) Nothing in this section shall affect the authority of a municipality under:
(i) Section 10-1-203;
(ii) Section 11-26-1;
(iii) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act; or
(iv) Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act.
(9) Compensation paid to the department under Subsection (3) may not be used by anyperson as evidence of the market or other value of the access for any other purpose, includingcondemnation proceedings, other litigation, or the application of rates of taxation or theestablishment of franchise fees relating to longitudinal access rights.
Amended by Chapter 382, 2008 General Session