Bill to boost rural broadband, opposed by Polis administration, dies in committee

A panel of Colorado lawmakers on Wednesday rejected legislation that would have prohibited the Colorado Department of Transportation from charging annual fees for right-of-way access to deploy broadband networks in some of the most remote areas of rural Colorado. 

The Polis administration, which is pushing for high-speed broadband access to 99% of Coloradans in three years, opposed the measure.  

Introduced back in January, negotiations over Senate Bill 91 with the Colorado Department of Transportation — whose fees broadband providers claimed would make rural access unaffordable — delayed its first hearing until this week, just a few days before the end of the 2024 legislative session.

The Senate Transportation & Energy Committee rejected the bill on Wednesday night on a 3-4 vote, picking up a Democratic vote but losing a key support from Sen. Nick Hinrichsen, D-Pueblo, whose district includes the rural parts of Pueblo County and where, according to the state broadband map, almost 4,500 households lack high-speed broadband access.

A long list of local governments, broadband providers and economic development groups supported the measure. 

Colorado is in line for $856 million from the federal Infrastructure Investment and Jobs Act through a separate grant known as the Broadband Equity Access and Deployment program.

The lone witnesses to testify against SB 91 were from the Colorado Department of Transportation, who claimed the fees it proposes to charge rural broadband providers is in line with accepted rates levelled by the federal government for access to rights-of-way along state highways.

CDOT's Shoshana Lew told the state's transportation commission last year  that state law requires fair-market-value reimbursement for use of public lands. The department reduced its fees twice, down to 3 cents per foot in rural areas, which must be paid every year, on top of a one-time permit fee.

Broadband providers claimed it would add tens of thousands of dollars to broadband projects, many which may have lifespans as long as 20 years. 

The state's five-year plan tied to Broadband Equity Access and Deployment program highlighted the problem: "One of the primary reasons for limited access in these rural areas is the often unfavorable business case for investment in broadband infrastructure."

Sponsors Sens. Kyle Mullica, D-Thornton and Byron Pelton, R-Sterling, offered a rewrite of the bill on Wednesday evening. The changes said CDOT could charge a permit fee only, not an annual fee, and it had to be reasonably related to the costs the agency incurs for providing those rights-of-way access.

The fee could not allow the agency to receive compensation for the fair market value of those rights-of-way, the amendment said.

Allie Axley and Emily Haddaway, both from the transportation agency, told the Senate Transportation & Energy Committee that CDOT has already begun issuing permits, about 36 so far in rural communities, where providers have paid $42 per year for the annual fee.

But Haddaway also didn't dispute higher fees for larger projects, such as a broadband connection between Kim and Trinidad, in Las Animas County. The project of 71 miles would cost about $10,000 over its life. 

Haddaway suggested the cost is a bargain, compared to the $1,600 per months she pays for her 720-square foot apartment.

"Private industries should not gain free access to public land without additional commitments to serve Coloradans," Haddaway said. "All other entities accommodated under the CDOT utility accommodation code, our regulated utilities, must comply with specific consumer protections," she added.

Mayor John Clark of Ridgeway, who spoke in favor of SB 91, said state agency's annual fees are so cost-prohibitive that some projects would never get off the ground. Some 91% of the state already gets high-speed broadband access, he said.

Expanding that access to the last 8%, he said, is the most difficult part because it's for rural Colorado. 

Clark said making these fee annual "could spell the difference between whether or not some of our least-served counties get the projects they need to join the 21st century."

Another witness pointed out a recent Federal Communications Commission decision that may put broadband into the same category as other telecommunications.

Monica Aken of Viaero Wireless told the committee that, with the FCC decision last week on net neutrality, broadband is now under the same category as a common carrier. SB 91 will allow broadband and communications providers a more clear path forward on internet access, she said. 

But even with the major amendments, four of the committee's Democrats weren't persuaded. 

Hinrichsen, in explaining his "no" vote, told Colorado Politics said he has concerns that, without the fees, CDOT could not keep up maintenance on those rights-of-way.

"I support expanding broadband access," he said.

CDOT's historical fee schedule was entirely unworkable, but that the agency has made great strides to fix it. But SB 91 would not have allowed them to recoup costs when there are maintenance issues.

"We've seen rights-of-way that cross under highways cause sinkage and need repairs," which can run into the millions of dollars, he said.  

But CDOT also needs to demonstrate what those costs are, Hinrichsen said. He acknowledged the concern that CDOT intends to profit from those fees, which he called inappropriate, but mandating a fee schedule that doesn't allow them to recover costs and shift the burden onto the HUTF system doesn't work, either. 

Hinrichsen said he wants to see better accounting on those costs and a fee schedule that matches that, either by CDOT itself or a bill in 2025. 

The committee is made up of five Democrats and two Republicans, chaired by Sen. Kevin Priola, D-Henderson, who has gained a reputation for opposition to rural interests, saying recently that rural Colorado "wants something for nothing," according to Pelton.