Developing Access

Proposed changes to New Mexico’s rights-of-way rules aim to address chronic broadband expansion issues, but obstacles remain

When Ted Fites shopped around for an internet service provider that would meet his family’s bandwidth needs, he didn’t just choose the cheapest option.

“You cannot do that with internet in this state,” Fites tells SFR, pointing to numerous barriers telecommunication companies face when attempting to provide reliable internet services in New Mexico.

Fites, an information technology student at Central New Mexico Community College, eventually landed on NMSurf’s cellular network because it offered the most bandwidth for his northeast Albuquerque home.

It wasn’t a perfect solution for Fites.

“Fiber optic is always going to be more reliable than cellular,” he says, though Santa Fe-based NMSurf doesn’t offer a fiber connection to his service area—often considered the gold standard of broadband networks.

The local telecommunications company, like many other broadband providers, wants to expand its coverage to address speed and connectivity issues like the ones frustrating Fites—and to close the so-called digital divide that has shut many New Mexicans out of access to the modern information age.

Complicating those efforts for NMSurf—and for huge, national internet service providers such as CenturyLink—is a convoluted, patchwork set of New Mexico Department of Transportation rules governing rights-of-way that vary from region to region around the state.

Rights-of-way are authorizations to use public land for a specific purpose—anything from electric transmission to reservoirs to broadband internet connection sites.

The transportation department is working on rule changes meant to bring statewide uniformity, consistency and fairness in the governance structure for broadband rights-of-way use. But there’s a catch: The department wants to hike the rates, which has caused heartburn for service providers.

Rights-of-way permits are lucrative for broadband service providers because they offer companies the gift of convenience, for example, when they wish to install fiber cables in the ground, which often requires negotiating with small property owners or jumping through a tangled web of zoning requirements.

The conversation between the state and private companies over the proposed rule changes comes amidst a recent decision in a lawsuit NMSurf filed against NMDOT.

In late June, a federal judge ruled in favor of NMSurf, ordering NMDOT to issue two permits the company applied for in November to install utility poles for wireless service—one on Interstate 25, the other on Highway 14—to expand broadband access to an underserved area.

In issuing a temporary injunction on June 28, US District Judge Kea Riggs agreed with NMSurf’s argument that it should be treated as a public utility, like PNM. Riggs cites public interest as a contributing factor in her ruling, writing, access “to wireless services is beneficial to the community at large, particularly in...areas with ‘little or no fixed broadband service now available.’”

“Their definition of utility, we fit within that,” NMSurf President Albert Catanach tells SFR.

NMDOT disagrees.

The agency maintains that NMSurf should not receive free use of state rights-of-way because the company doesn’t qualify as a “public utility.”

NMDOT plans to award a permit for the pole off Highway 14, but the agency doesn’t plan to issue the I-25 permit as it currently stands because it poses risks to travelers’ safety, though the department is “trying to comply with the court’s order.” The agency argues the utility pole should be moved east or west of the original location onto private property, transportation spokeswoman Marisa Maez writes in an email to SFR.

Allowing companies to use these rights-of-way for free would violate the anti-donation clause of the New Mexico Constitution, Maez writes. The department “will continue to litigate whether NMSurf can use the taxpayer [rights-of-way] for free, or pay their fair share for the use of public [rights-of-way] like their competitors have and do.”

In order for service providers to interconnect to the internet, they must use the right-of-ways to get to different data centers. Installing fiber cables to these data centers, based mostly in big cities, is essential to build out to underserved areas.

“That’s how you get on the internet,” says Catanach.

The larger debate over how the transportation agency will process and award permits to telecommunication companies working to expand broadband access started earlier this year.

In an initial, informal meeting in April, NMDOT welcomed comments on the proposed rulemaking from broadband providers. According to Catanach, service providers pushed back against the proposed changes, with one company referring to the proposals as a “broadband killer.”

Maez says stakeholders were primarily concerned about fees the transportation department proposes to charge for using the rights-of-way. She says the proposal is to charge “fair market value” and adds that negotiations with providers are ongoing.

Danielle Spears, a spokeswoman for the telecommunication company CenturyLink, writes to SFR in a statement: “Making it more expensive to gain access to public [rights-of-way] in New Mexico will make it even more difficult to reach customers in rural, sparsely populated areas with high speed internet.”

CenturyLink wants fewer obstacles when trying to expand access in its service area.

“State and local policymakers should focus on streamlining rules and creating conditions that encourage broadband investment while removing barriers that can slow the deployment of broadband infrastructure,” she writes.

Those private companies include broadband businesses and some renewable energy companies.

NMDOT says that smoothing out multiple zoning jurisdictions in pursuit of uniform rules would benefit broadband service providers.

The rights-of-way issue has proven to be a major obstacle to building out broadband infrastructure. During this year’s legislative session, lawmakers heard from telecommunication companies who commented on the time-consuming process needed to secure permits to lay fiber cables in the ground. Cable depth was another concern: Companies want to sink them 36 inches underground, while NMDOT favors 42 inches.

And with a shortage of licensed surveyors in rural areas of the state, NMDOT plans to review the rights-of-way application requirements to make the process less burdensome for companies working in underserved areas.

NMDOT scheduled a closed-door, informal meeting for broadband providers Monday, but has not set a date for a public meeting on the proposed rule changes.

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