SB2603 SD1

SECTION 1. Chapter 206N, Hawaii Revised Statutes is amended by adding a new part to be appropriately designated and to read as follows:

"PART . telecommunication facility installation

§206N-A Definitions. As used in this part, unless the context requires otherwise:

"Broadband service" means the provision of access and transport to the internet, computer processing, information storage or protocol conversion at a rate of at least one megabit per second in either the upstream or downstream direction, as established by the Federal Communications Commission.

"Department" means the department of transportation.

"Director" means the director of transportation.

"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 thirty or more linear meters.

"Provider" means an entity that:

(1) Provides for the sale or resale of wholesale or retail broadband services in the State and that:

(A) Is recognized as an eligible telecommunications carrier by the public utilities commission; or

(B) Meets the Federal Communications Commission and industry carrier class service guidelines; or

(2) Is a political subdivision that has statutory authority to provide communications services.

"Provider" includes a video service provider.

"Telecommunication facility" means any cable, line, fiber, wire, conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmitting equipment, receiving equipment, or power equipment or any other equipment, system, or device that is used to transmit, receive, produce, or distribute by wireless, wireline, electronic, or optical signal for communication purposes.

§206N-B Telecommunication facility installation; highway construction projects; expanded use; action in court; just compensation; excavation; notice. (a) The director, or a provider with permission from the department, may install telecommunication facilities pursuant to this part.

(b) The director may lease a telecommunication facility to providers pursuant to this part and coordinate with providers regarding planning or relocating a telecommunication facility and any related provider telecommunication facilities within the right-of-way at the provider's expense. The director may limit provider access to any broadband telecommunication facilities within the right-of-way for initial installation and infrequent access for maintenance purposes and may take other actions necessary to maintain highway safety.

(c) The director, or a provider with permission from the department, may install a telecommunication facility without regard to the timing of a related existing road construction project.

(d) For the purposes of installing and operating a telecommunication facility, if the department, directly or through a provider, expands the use of an existing easement or other property right that is owned, held, or used by the department for transportation purposes and the expanded use reduces the fair market value of the property over which the easement or other property right runs, the property owner is entitled to just compensation from the department or provider.

(e) No later than eighteen months after the date the department provides notice to a property owner of the expanded use, the property owner seeking just compensation based on the decrease in value shall commence an action in the circuit court of the circuit in which the property in question is located.

(f) Notice under subsection (e) is provided if sent by first class mail to the last known address of the property owner.

(g) In an action for just compensation based on a claim of expanded use for installation of a telecommunication facility:

(1) The court or jury shall ascertain and assess the decrease in value of the property based on the difference between the fair market value of the entire parcel immediately before the expanded use and the fair market value of the entire parcel immediately after the expanded use;

(2) Evidence of revenues or profits derived from or the rental value of an assembled communications corridor shall not be admissible in determining fair market value; and

(3) On payment of just compensation, the expanded use is deemed fully vested in the department and the easement including the expanded use shall run with the land.

(h) A class action may not be maintained against the department or provider in any action for just compensation based on a claim of expanded use for the installation of a telecommunication facility.

(i) Actions for just compensation as described in this section include trespass, inverse condemnation, and other similar causes of action.

(j) This section shall not prohibit the department or a provider from reaching an agreement with a property owner to waive a claim for just compensation related to expanded use for the installation of a telecommunication facility or from acquiring the right to use the property by other lawful means.

(k) If excavation is required to install fiber optic cable or other underground telecommunication facilities within an existing easement or other property right that is owned, held or used by the department for transportation purposes, a provider with consent of the department shall provide written notice to the property owner of the expanded use for installation of the telecommunication facility before excavation may begin. The provider shall send the notice, by first class mail to the last known address of the property owner. A notice sent to the property owner entitled to notice under this subsection must include the following:

(1) The name and mailing address of the provider;

(2) The mailing address, telephone number and email address of a representative of the provider;

(3) A summary statement describing the activities to be conducted during the excavation; and

(4) The approximate dates when the excavation will start and end.

(l) The notice prescribed in subsection (k) is not required before the provider may use an easement or other property right that includes an authorization for excavation for the purposes of installing a telecommunication facility. The failure to provide the notice prescribed in subsection (k):

(1) Prohibits the provider from proceeding with an excavation until the notice is provided; and

(2) Shall not invalidate or prevent the department from expanding the use of the easement or property right as otherwise described in this section.

(m) Compensation provided by this section shall be paid from the smart highway corridor special fund established by section 206N-G.

§206N-C Management of state-owned telecommunication facilities. The department may enter into an agreement with a public or private entity for the purpose of using, managing, or operating state-owned telecommunication facilities and coordinating activities in this State relating to planning, mapping, and procuring broadband service.

§206N-D Longitudinal telecommunication access in the highway system; agreements; restrictions; rulemaking. (a) Except as provided in subsection (e), 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.

(b) The department shall enter into an agreement with a provider and issue a permit before granting the provider any longitudinal access.

(c) Except as specifically provided by an agreement pursuant to subsection (b), a property interest in a right-of-way may not be granted under this section.

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

(1) Specify the terms and conditions for renegotiating the agreement;

(2) Specify maintenance responsibilities for each telecommunication facility;

(3) Be nonexclusive; and

(4) Be limited to a maximum term of thirty years.

(e) The department may not grant any longitudinal access that results in a significant compromise of the safe, efficient, and convenient use of the highway for the traveling public.

(f) The director shall adopt rules that:

(1) Govern the installation, operation, and maintenance of a telecommunication facility granted longitudinal access under this section;

(2) Specify the procedures for establishing an agreement for longitudinal access for a provider; and

(3) Provide for the relocation or removal of a telecommunication facility for:

(A) Needed changes to a highway;

(B) Expiration of an agreement; or

§206N-E Longitudinal telecommunication access to highway system right-of-way; compensation. (a) The department shall require compensation from a provider for longitudinal access to the right-of-way of a state highway. The compensation shall be:

(1) Fair and reasonable;

(2) Competitively neutral;

(3) Nondiscriminatory;

(4) Open to public inspection;

(5) Established to promote access by multiple providers;

(6) Established for zones of this State;

(7) Established to encourage the deployment of digital infrastructure within this State;

(8) A lump sum payment or annual installment, at the option of the provider; and

(9) Set pursuant to subsection (h).

(b) The compensation may be cash, in-kind compensation, or a combination thereof.

(d) The department shall determine the present value of any in-kind compensation based on the incremental cost to the provider.

(e) The value of in-kind compensation or a combination of cash and in-kind compensation shall be equal to or greater than the amount of cash compensation that would be charged if the compensation was cash only.

(f) The department shall provide for the proportionate sharing of costs among the department and providers for joint trenching or trench-sharing based on the amount of conduit innerduct space that is authorized in the agreement for the trench.

(g) If two or more providers are required to share a single trench, each provider in the trench shall share the cost and benefits of the trench pursuant to subsection (f) of this section on a fair, reasonable, competitively neutral, and nondiscriminatory basis.

(h) The department, by rule, shall establish a schedule of rates of compensation for any longitudinal access granted under this section.

(i) The department may not pay any cost of relocation of a private telecommunication facility granted longitudinal access to the right-of-way of a highway on the interstate system under this section.

(j) The department shall deposit the moneys collected pursuant to this section in the smart highway corridor special fund established by section 206N-G.

(k) Any telecommunications capacity acquired as in-kind compensation shall be used exclusively for the further development of telecommunications that serve state agencies and enhance connectivity for higher and public education and may not be sold or leased in competition with telecommunication or internet service providers.

(l) A person may not use compensation paid to the department pursuant to this section as evidence of the market or other value of the access for any other purpose, including condemnation proceedings, other litigation, the application of rates of taxation, or the establishment of franchise fees relating to longitudinal access rights.

§206N-F Use and access to state-owned conduit; compensation. (a) The department may offer a provider use of and access to its spare conduit and related facilities if the department does the following:

(1) Determines the spare conduit and related facilities are not needed for highway purposes;

(2) Receives fair compensation for the use of and access to the spare conduit and related facilities; and

(3) Offers the use and access in a competitively neutral and nondiscriminatory manner as to all similarly situated providers.

(b) The department shall establish rates of compensation for the use of and access to its spare conduit to ensure that the department receives fair compensation for the value of its underground installations of conduit and related facilities. The compensation shall be fair and reasonable and charged in a competitively neutral and nondiscriminatory manner to all similarly situated providers.

(c) Any compensation pursuant to this section must be set forth in an agreement entered between the department and the provider.

(d) The department shall determine the annual compensation to be paid by each provider for the use of its conduit and related facilities based on the present value of the estimated, reasonable cost to the department of trenching to place conduit, fiber and other related facilities.

(e) The department may accept in-kind compensation for the use of and access to its spare conduit and related facilities in accordance with the valuation procedures prescribed in section 206N-E.

(f) The department shall deposit the moneys collected pursuant to this section in the smart highway corridor special fund established by section 206N-G.

(g) Nothing in this section shall require the department to receive compensation from any budget unit of this State for use of and access to conduit and related facilities.

§206N-G Smart highway corridor special fund. (a) There is established in the state treasury the smart highway corridor special fund, into which shall be deposited:

(1) Appropriations by the legislature;

(2) Moneys received from the sales or leases of rights-of-ways, telecommunication facilities, and telecommunication services pursuant to sections 206N-E and 206N-F; and

(3) Moneys received from providers to reimburse costs for compensation claims pursuant to section 206N-B.

(b) The smart highway corridor special fund shall be administered by the department and shall be used for the following purposes:

(1) Maintenance, operation, and expansion of telecommunication facilities and telecommunication services within rights-of-way that are managed by the department; and

(2) Payment of compensation pursuant to section 206N-B.

(c) All interest derived from the deposit and investment of moneys in the smart highway corridor special fund shall be credited to the fund. At the end of any fiscal year, all unexpended and unencumbered moneys shall remain in the smart highway corridor special fund and shall not be credited or transferred to the general fund or any other funds.

(d) On notice from the department, the director of finance shall invest and divest the moneys in the smart highway corridor special fund as provided by section 36-21, and moneys earned from investment shall be credited to the fund."

SECTION 2. Chapter 264, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§264- Lease of areas above and below highways; exceptions. (a) The director may lease to any public agency, as defined in section 103D-1001, or to a private person or entity the use of areas above or below state highways for telecommunication purposes only, subject to reservations, restrictions, and conditions the director deems necessary to assure adequate protection of the safety and integrity of highway facilities and to secure the safety of motorists. Before entering the lease, the director shall:

(1) Determine that the proposed use by a lessee is not in conflict with the zoning regulations of the local government concerned; and

(2) Make a lease with a private person or entity only after competitive sealed bidding pursuant to 103D-302.

(b) The director may reject any or all bids or call for additional bids if, in the opinion of the board, the bids submitted are not in the best interest of this State. The director shall not accept a bid that does not yield at least a fair rental value for the property to the state highway fund.

(d) The authority granted to the director by this section shall not include the right to lease public rights-of-way to public service corporations, and this section shall not affect any rights of public service corporations to use public rights-of-way or to obtain permits or easements associated with public uses of public rights-of-way."

SECTION 3. Section 206N-1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Subject to subsection (b), this chapter shall apply only to activities of a communications service provider or activities of a provider of telecommunication facilities to deploy small wireless facilities and to modified or replaced state or county utility poles associated with small wireless facilities.

Except as to the state or county permitting authority related to utility poles, this chapter shall not be construed to apply to:

(1) Utility poles or other utility infrastructure solely owned by investor-owned utility companies;

(2) Investor owned utility companies' utility poles in which the State or county has an ownership interest;

(3) Airport buildings; or

(4) Buildings whose use is principally for public safety purposes."

SECTION 4. Chapter 206N, Hawaii Revised Statutes, is amended by designating sections 206N-1 to 206N-10 as part I, entitled "General Provisions".

SECTION 5. The department of transportation shall promulgate rules for the purposes of this Act, pursuant to chapter 91, within one year from the effective date of this Act.

SECTION 6. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 7. New statutory material is underscored.

SECTION 8. This Act shall take effect on January 1, 2050.

THE SENATE	S.B. NO.	2603
THIRTY-FIRST LEGISLATURE, 2022		S.D. 1
STATE OF HAWAII