HF 4182

as introduced - 93rd Legislature (2023 - 2024) Posted on 03/13/2024 12:25pm

A bill for an act
relating to broadband; establishing the Equal Access to Broadband Act; modifying
provisions governing broadband services and broadband infrastructure; amending
Minnesota Statutes 2022, sections 116J.39, subdivision 1; 116J.394; 116J.399,
subdivisions 1, 8, by adding a subdivision; 237.162, subdivision 4; 237.163,
subdivisions 2, 6, 7; 412.221, subdivision 6; Minnesota Statutes 2023 Supplement,
section 222.37, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2022, section 116J.39, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

(a) For the purposes of this section, the following terms have
the meanings given them.

(b) "Broadband" or "broadband service" means deleted text begin any deleted text end new text begin a new text end service deleted text begin providing advanced
telecommunications capability and deleted text end new text begin that offers to a person or company new text end new text begin high-speed new text end Internet
access with transmission speeds that, at a minimum, meet the Federal Communications
Commission definition for broadband.

(c) "Local unit of government" has the meaning given in section 116G.03, subdivision
3.

(d) "Office" means the Office of Broadband Development established in subdivision 2,
paragraph (a).

Sec. 2.

Minnesota Statutes 2022, section 116J.394, is amended to read:

116J.394 DEFINITIONS.

(a) For the purposes of sections 116J.394 to deleted text begin 116J.398 deleted text end new text begin 116J.399 new text end , the following terms
have the meanings given them.

(b) "Broadband" or "broadband service" has the meaning given in section 116J.39,
subdivision 1, paragraph (b).

(c) "Broadband infrastructure" means networks of deployed deleted text begin telecommunications deleted text end
equipment and technologies necessary to provide deleted text begin high-speed Internet access and other
advanced telecommunications services for deleted text end new text begin broadband to new text end end users.

(d) "Commissioner" means the commissioner of employment and economic development.

(e) "Last-mile infrastructure" means broadband infrastructure that serves as the final leg
connecting the broadband service provider's network to the end-use customer's on-premises
telecommunications equipment.

(f) "Middle-mile infrastructure" means broadband infrastructure that links a broadband
service provider's core network infrastructure to last-mile infrastructure.

(g) "Political subdivision" means any county, city, town, school district, special district
or other political subdivision, or public corporation.

(h) "Underserved areas" means areas of Minnesota in which households or businesses
lack access to wire-line broadband service at speeds of at least 100 megabits per second
download and at least 20 megabits per second upload.

(i) "Unserved areas" means areas of Minnesota in which households or businesses lack
access to wire-line broadband service, as defined in section 116J.39.

Sec. 3.

Minnesota Statutes 2022, section 116J.399, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

For the purposes of this section, the following terms have
the meanings given:

deleted text begin (1) "broadband infrastructure" has the meaning given in section 116J.394, paragraph
(c);
deleted text end

deleted text begin (2) deleted text end new text begin (1) new text end "broadband service" has the meaning given in section deleted text begin 116J.394, paragraph (b) deleted text end new text begin
116J.39, subdivision 1, paragraph (b) new text end ; and

deleted text begin (3) deleted text end new text begin (2) new text end "provider" means a broadband service provider, but does not include an electric
cooperative association organized under chapter 308A that provides broadband service.

Sec. 4.

Minnesota Statutes 2022, section 116J.399, subdivision 8, is amended to read:

Subd. 8.

Local governmental right-of-way management preserved.

new text begin (a) new text end The placement
of broadband infrastructure to provide broadband service under subdivisions 2 to 7 new text begin : (1) new text end is
subject to local government deleted text begin permitting and right-of-way management authority under section
237.163, deleted text end new text begin franchising or other municipal authorization under subdivision 10; new text end and new text begin (2) new text end must
be coordinated with the relevant local government unit in order to minimize potential future
relocations. The provider must notify a local government unit prior to placing infrastructure
for broadband service in an easement that is in or adjacent to the local government unit's
public right-of-way.

new text begin (b) Nothing in this section applies to a public utility easement.
new text end

Sec. 5.

Minnesota Statutes 2022, section 116J.399, is amended by adding a subdivision
to read:

new text begin Subd. 10. new text end

new text begin Political subdivisions; franchise or municipal authorization. new text end

new text begin (a) A political
subdivision may require a provider furnishing broadband within the political subdivision
to obtain a franchise or other municipal authorization in accordance with the terms,
conditions, and limitations of the political subdivision's regulatory acts, including but not
limited to regulatory acts governing the placing of lines and facilities above ground or
underground.
new text end

new text begin (b) Pursuant to a franchise or other municipal authorization required under paragraph
(a), a political subdivision may require a provider to pay the political subdivision fees to
(1) raise revenue, (2) defray increased municipal costs that accrue as a result of right-of-way
occupation, or (3) both. The fee may include but is not limited to a sum of money based on
the gross operating revenues or gross earnings resulting from the provider's operations to
provide broadband within the political subdivision for the duration of time the provider
continues to operate within the political subdivision.
new text end

Sec. 6.

Minnesota Statutes 2023 Supplement, section 222.37, subdivision 1, is amended
to read:

Subdivision 1.

Use requirements.

new text begin (a) new text end Any water power, telegraph, telephone, new text begin broadband, new text end
pneumatic tube, pipeline, community antenna television, cable communications or electric
light, heat, power company, entity that receives a route permit under chapter 216E for a
high-voltage transmission line necessary to interconnect an electric power generating facility
with transmission lines or associated facilities of an entity that directly, or through its
members or agents, provides retail electric service in the state, or fire department may use
public roads for the purpose of constructing, using, operating, and maintaining lines, subways,
canals, conduits, transmission lines, hydrants, or dry hydrants, for their business, but such
lines shall be so located as in no way to interfere with the safety and convenience of ordinary
travel along or over the same; and, in the construction and maintenance of such line, subway,
canal, conduit, transmission lines, hydrants, or dry hydrants, the entity deleted text begin shall be deleted text end new text begin is new text end subject
to new text begin municipal franchising requirements under section 116J.399, subdivision 10, including
compensation, as well as new text end all reasonable regulations imposed by the governing body of any
county, town or city in which such public road may be.

new text begin (b) new text end If the governing body does not require the entity to obtain a new text begin franchise or new text end permit, an
entity shall notify the governing body of any county, town, or city having jurisdiction over
a public road prior to the construction or major repair, involving extensive excavation on
the road right-of-way, of the entity's equipment along, over, or under the public road, unless
the governing body waives the notice requirement. A waiver of the notice requirement must
be renewed on an annual basis.

new text begin (c) new text end For emergency repair an entity shall notify the governing body as soon as practical
after the repair is made.

new text begin (d) new text end Nothing herein shall be construed to grant to any person any rights deleted text begin for the maintenance
of deleted text end new text begin to construct and maintain new text end a deleted text begin telegraph, telephone, pneumatic tube, community antenna
television system, deleted text end new text begin system or network that provides telecommunications, broadband, new text end cable
communications deleted text begin system deleted text end , deleted text begin or light, heat, power system, electric power generating system,
high-voltage transmission line, or deleted text end hydrant deleted text begin system deleted text end new text begin , gas, electric, or other utility service new text end within
the corporate limits of any city until deleted text begin such deleted text end new text begin the new text end person deleted text begin shall have deleted text end new text begin has new text end obtained new text begin a franchise or
other municipal authorization that grants new text end the right to new text begin construct and new text end maintain deleted text begin such deleted text end new text begin the new text end system
within deleted text begin such deleted text end new text begin the new text end city or for a period beyond that for which the right to operate deleted text begin such deleted text end new text begin the new text end system
is granted by deleted text begin such deleted text end new text begin the new text end city. new text begin Authority granted under this paragraph must be granted before
the person provides the service. A company that provides multiple services to the public
must obtain a franchise or specific municipal authorization to provide each service.
new text end

Sec. 7.

Minnesota Statutes 2022, section 237.162, subdivision 4, is amended to read:

Subd. 4.

Telecommunications right-of-way user.

(a) "Telecommunications right-of-way
user" means a person owning or controlling a facility in the public right-of-way, or seeking
to own or control a facility in the public right-of-way, that is used or is intended to be used
deleted text begin for providing wireless service, or transporting deleted text end new text begin to provide new text end telecommunications deleted text begin or other voice
or data information deleted text end new text begin service new text end .

new text begin (b) For purposes of this section and section 237.163, telecommunications service does
not include: (1) cable service, as defined under United States Code, title 47, section 522(6);
or (2) broadband service, as defined under section 116J.39, subdivision 1.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end A cable communication system defined and regulated under chapter 238, deleted text begin and deleted text end new text begin an
entity that solely provides broadband services, as defined under section 116.39, subdivision
1, new text end telecommunications activities related to providing natural gas or electric energy services,
a public utility as defined in section 216B.02, a municipality, a municipal gas or power
agency organized under chapter 453 or 453A, or a cooperative electric association organized
under chapter 308A deleted text begin , deleted text end are not telecommunications right-of-way users for the purposes of this
section and section 237.163 deleted text begin , except to the extent these entities are offering wireless services deleted text end .

Sec. 8.

Minnesota Statutes 2022, section 237.163, subdivision 2, is amended to read:

Subd. 2.

Generally.

(a) Subject to this section, a telecommunications right-of-way user
authorized to do business under the laws of this state or by license of the Federal
Communications Commission may construct, maintain, and operate small wireless facilities,
conduit, cable, switches, and related appurtenances and facilities along, across, upon, above,
and under any public right-of-way.

(b) Subject to this section, a local government unit has the authority to new text begin franchise and new text end
manage its public rights-of-way new text begin , receive compensation for use and occupancy, new text end and to recover
its rights-of-way management costs. Except as provided in subdivisions 3a, 3b, and 3c, the
authority defined in this section may be exercised at the option of the local government unit
and is not mandated under this section. A local government unit may, by ordinance:

(1) require a telecommunications right-of-way user seeking to excavate or obstruct a
public right-of-way for the purpose of providing telecommunications services to obtain a
right-of-way permit to do so and to impose permit conditions consistent with the local
government unit's management of the right-of-way;

(2) require a telecommunications right-of-way user using, occupying, or seeking to use
or occupy a public right-of-way for the purpose of providing telecommunications services
to register with the local government unit by providing the local government unit with the
following information:

(i) the applicant's name, gopher state one-call registration number under section 216D.03,
address, and telephone and facsimile numbers;

(ii) the name, address, and telephone and facsimile numbers of the applicant's local
representative;

(iii) proof of adequate insurance; and

(iv) other information deemed reasonably necessary by the local government unit for
the efficient administration of the public right-of-way; and

(3) require telecommunications right-of-way users to submit to the local government
unit plans for construction and major maintenance that provide reasonable notice to the
local government unit of projects that the telecommunications right-of-way user expects to
undertake that may require excavation and obstruction of public rights-of-way.

(c) A local government unit may also require a telecommunications right-of-way user
that is registered with the local government unit pursuant to paragraph (b), clause (2), to
periodically update the information in its registration application.

(d) Notwithstanding sections 394.34 and 462.355, or any other law, a local government
unit must not establish a moratorium with respect to:

(1) filing, receiving, or processing applications for right-of-way or small wireless facility
permits; or

(2) issuing or approving right-of-way or small wireless facility permits.

(e) A telecommunications right-of-way user may place a new wireless support structure
or collocate small wireless facilities on wireless support structures located within a public
right-of-way, subject to the approval procedures under this section and, for collocation on
wireless support structures owned by a local government unit, the reasonable terms,
conditions, and rates set forth under this section. A local government unit may prohibit,
regulate, or charge a fee to install wireless support structures or to collocate small wireless
facilities only as provided in this section.

(f) The placement of small wireless facilities and wireless support structures to
accommodate small wireless facilities are a permitted use in a public right-of-way, except
that a local government unit may require a person to obtain a special or conditional land
use permit to install a new wireless support structure for the siting of a small wireless facility
in a right-of-way in a district or area zoned for single-family residential use or within a
historic district established by federal or state law or city ordinance as of the date of
application for a small wireless facility permit. This paragraph does not apply to areas
outside a public right-of-way that are zoned and used exclusively for single-family residential
use.

Sec. 9.

Minnesota Statutes 2022, section 237.163, subdivision 6, is amended to read:

Subd. 6.

Fees.

(a) new text begin In addition to franchise consideration, which may include compensation
for use and occupancy, new text end a local government unit may recover its right-of-way management
costs by imposing a fee for registration, a fee for each right-of-way or small wireless facility
permit, or, when appropriate, a fee applicable to a particular telecommunications right-of-way
user when that user causes the local government unit to incur costs as a result of actions or
inactions of that user. A local government unit may not recover costs from a
telecommunications right-of-way user or an owner of a cable communications system
awarded a franchise under chapter 238 caused by another entity's activity in the right-of-way.

(b) Fees, or other right-of-way obligations, imposed by a local government unit on
telecommunications right-of-way users under this section new text begin to recover right-of-way
management costs new text end must be:

deleted text begin (1) based on the actual costs incurred by the local government unit in managing the
public right-of-way;
deleted text end

deleted text begin (2) based on an allocation among all users of the public right-of-way, including the local
government unit itself, which shall reflect the proportionate costs imposed on the local
government unit by each of the various types of uses of the public rights-of-way;
deleted text end

deleted text begin (3) deleted text end new text begin (1) new text end imposed on a competitively neutral basis; and

deleted text begin (4) deleted text end new text begin (2) new text end imposed in a manner so that aboveground uses of public rights-of-way do not
bear costs incurred by the local government unit to regulate underground uses of public
rights-of-way.

(c) The rights, duties, and obligations regarding the use of the public right-of-way
imposed under this section must be applied to all users of the public right-of-way, including
the local government unit while recognizing regulation must reflect the distinct engineering,
construction, operation, maintenance and public and worker safety requirements, and
standards applicable to various users of the public rights-of-way. For users subject to the
franchising authority of a local government unit, to the extent those rights, duties, and
obligations are addressed in the terms of an applicable franchise agreement, the terms of
the franchise shall prevail over any conflicting provision in an ordinance.

(d) A wireless service provider may collocate small wireless facilities on wireless support
structures owned or controlled by a local government unit and located within the public
roads or rights-of-way without being required to apply for or enter into any individual
license, franchise, or other agreement with the local government unit or any other entity,
other than a standard small wireless facility collocation agreement under subdivision 3a,
paragraph (f), if the local unit of government elects to utilize such an agreement.

(e) Any initial engineering survey and preparatory construction work associated with
collocation must be paid by the cost causer in the form of a onetime, nonrecurring,
commercially reasonable, nondiscriminatory, and competitively neutral charge to recover
the costs associated with a proposed attachment.

(f) Total application fees for a small wireless facility permit must comply with this
subdivision with respect to costs related to the permit.

(g) A local government unit may elect to charge each small wireless facility attached to
a wireless support structure owned by the local government unit a fee, in addition to other
fees or charges allowed under this subdivision, consisting of:

(1) up to $150 per year for rent to occupy space on a wireless support structure;

(2) up to $25 per year for maintenance associated with the space occupied on a wireless
support structure; and

(3) a monthly fee for electricity used to operate a small wireless facility, if not purchased
directly from a utility, at the rate of:

(i) $73 per radio node less than or equal to 100 max watts;

(ii) $182 per radio node over 100 max watts; or

(iii) the actual costs of electricity, if the actual costs exceed the amount in item (i) or
(ii).

Sec. 10.

Minnesota Statutes 2022, section 237.163, subdivision 7, is amended to read:

Subd. 7.

Additional right-of-way provisions.

(a) In managing the public rights-of-way
and in imposing fees under this section, no local government unit may:

(1) unlawfully discriminate among telecommunications right-of-way users;

(2) grant a preference to any telecommunications right-of-way user; new text begin or
new text end

(3) create or erect any unreasonable requirement for entry to the public rights-of-way
by telecommunications right-of-way users deleted text begin ; or deleted text end new text begin .
new text end

deleted text begin (4) require a telecommunications right-of-way user to obtain a franchise or pay for the
use of the right-of-way.
deleted text end

(b) A telecommunications right-of-way user need not apply for or obtain right-of-way
permits for facilities that are located in public rights-of-way on May 10, 1997, for which
the user has obtained the required consent of the local government unit, or that are otherwise
lawfully occupying the public right-of-way. However, the telecommunications right-of-way
user may be required to new text begin : (1) comply with all requirements imposed as allowed under this
section; and (2) new text end register and to obtain a right-of-way permit for an excavation or obstruction
of existing facilities within the public right-of-way after May 10, 1997.

(c) Data and documents exchanged between a local government unit and a
telecommunications right-of-way user are subject to the terms of chapter 13. A local
government unit not complying with this paragraph is subject to the penalties set forth in
section 13.08.

deleted text begin (d) A local government unit may not collect a fee imposed under this section through
the provision of in-kind services by a telecommunications right-of-way user, nor may a
local government unit require the provision of in-kind services as a condition of consent to
use the local government unit's public right-of-way or to obtain a small wireless facility
permit.
deleted text end

deleted text begin (e) Except as provided in this chapter or required by federal law, a local government
unit shall not adopt or enforce any regulation on the placement or operation of
communications facilities in the right-of-way where the entity is already authorized to
operate in the right-of-way, and shall not regulate or impose or collect fees on
communications services except to the extent specifically provided for in the existing
authorization, and unless expressly required by state or federal statute.
deleted text end

Sec. 11.

Minnesota Statutes 2022, section 412.221, subdivision 6, is amended to read:

Subd. 6.

Public ways and grounds.

new text begin (a) new text end The council deleted text begin shall have deleted text end new text begin has the new text end power to lay out,
open, change, widen or extend streets, alleys, parks, squares, and other public ways and
grounds and to grade, pave, repair, control, and maintain the same; to establish and maintain
drains, canals, and sewers; to alter, widen or straighten watercourses; to lay, repair, or
otherwise improve or discontinue sidewalks, paths, and crosswalks.

deleted text begin It shall have deleted text end new text begin (b) The council has the new text end power new text begin : (1) to franchise the occupants and users of
public right-of-way; (2) to receive compensation; and (3) new text end by ordinance to regulate the use
of streets and other public grounds new text begin to the extent provided in other applicable law new text end , to prevent
encumbrances or obstructions, and to require the owners or occupants of buildings and the
owners of vacant lots to remove any snow, ice, dirt, or rubbish from the sidewalks adjacent
thereto and in default thereof to cause such encumbrances, obstructions, or substances to
be removed and the cost to be assessed against the property as a special assessment.