Rights-of-way: Telecommunications Providers

C.R.S. tit. 38, art. 5.5

in effect

C.R.S. § 38-5.5-101 Legislative declaration

38-5.5-101. Legislative declaration. (1) The general assembly hereby finds, determines, and declares that: (a) The passage of House Bill 95-1335, enacted at the first regular session of the sixtieth general assembly, established a policy within the state to encourage competition among the various telecommunications providers, to reduce the barriers to entry for those providers, to authorize and encourage competition within the local exchange telecommunications market, and to ensure that all consumers benefit from such competition and expansion. (b) The stated goals of House Bill 95-1335 were that all citizens have access to a wider range of telecommunications services at rates that are reasonably comparable within the state, that basic service be available and affordable to all citizens, and that universal access to advanced telecommunications services would be available to all consumers. Such goals are essential to the economic and social well-being of the citizens of Colorado and can be accomplished only if telecommunications providers are allowed to develop ubiquitous, seamless, statewide telecommunications networks. To require telecommunications companies to seek authority from every political subdivision within the state to conduct business is unreasonable, impractical, and unduly burdensome. In addition, the general assembly further finds and declares that since the public rights-of-way are dedicated to and held on a nonproprietary basis in trust for the use of the public, their use by telecommunications companies is consistent with such policy and appropriate for the public good. (2) The general assembly further finds, determines, and declares that nothing in this article shall be construed to alter or diminish the authority of political subdivisions of the state to lawfully exercise their police powers with respect to activities of telecommunications providers within their boundaries, and, subject to such reservation of authority, that: (a) The construction, maintenance, operation, oversight, and regulation of telecommunications providers and their facilities is a matter of statewide concern and interest; (b) Telecommunications providers operating under the authority of the federal communications commission or the Colorado public utilities commission pursuant to article 15 of title 40, C.R.S., require no additional authorization or franchise by any municipality or other political subdivision of the state to conduct business within a given geographic area and that no such political subdivision has jurisdiction to regulate telecommunications providers based upon the content, nature, or type of telecommunications service or signal they provide except to the extent granted by federal or state legislation; (c) Telecommunications providers have a right to occupy and utilize the public rights-of-way for the efficient conduct of their business; (d) Access to rights-of-way and oversight of that access must be competitively neutral, and no telecommunications provider should enjoy any competitive advantage or suffer a competitive disadvantage by virtue of a selective or discriminatory exercise of the police power by a local government.

C.R.S. § 38-5.5-102 Definitions

38-5.5-102. Definitions. As used in this article 5.5, unless the context otherwise requires: (1) "Broadband" or "broadband service" has the same meaning as set forth in 7 U.S.C. sec. 950bb (b)(1) as of August 6, 2014, and includes "cable service", as defined in 47 U.S.C. sec. 522 (6) as of August 6, 2014. (2) "Broadband facility" means any infrastructure used to deliver broadband service or for the provision of broadband service. (3) "Broadband provider" means a person that provides broadband service, and includes a "cable operator", as defined in 47 U.S.C. sec. 522 (5) as of August 6, 2014. (4) "Collocation" has the same meaning as set forth in section 29-27-402 (3). (5) "Political subdivision" or "local government entity" means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law. (6) "Public highway" or "highway" for purposes of this article 5.5 includes all roads, streets, and alleys and all other dedicated rights-of-way and utility easements of the state or any of its political subdivisions, whether located within the boundaries of a political subdivision or otherwise. (7) "Small cell facility" has the same meaning as set forth in section 29-27-402 (4). (8) "Small cell network" has the same meaning as set forth in section 29-27-402 (5). (9) "Telecommunications provider" means a person that provides telecommunications service, as defined in section 40-15-102 (29), with the exception of cable services as defined by section 602 (5) of the federal "Cable Communications Policy Act of 1984", 47 U.S.C. sec. 522 (6), pursuant to authority granted by the public utilities commission of this state or by the federal communications commission. "Telecommunications provider" does not mean a person or business using antennas, support towers, equipment, and buildings used to transmit high power over-the-air broadcast of AM and FM radio, VHF and UHF television, and advanced television services, including high definition television. The term "telecommunications provider" is synonymous with "telecommunication provider".

C.R.S. § 38-5.5-103 Use of public highways - discrimination prohibited - content regulation prohibited

38-5.5-103. Use of public highways - discrimination prohibited - content regulation prohibited. (1) (a) Any domestic or foreign telecommunications provider or broadband provider authorized to do business under the laws of this state has the right to construct, maintain, and operate conduit, cable, switches, and related appurtenances and facilities, and communications and broadband facilities, including small cell facilities and small cell networks, along, across, upon, above, and under any public highway in this state, subject to this article 5.5 and article 1.5 of title 9. (b) The construction, maintenance, operation, and regulation of the facilities described in subsection (1)(a) of this section, including the right to occupy and utilize the public rights-of-way, by telecommunications providers and broadband providers are matters of statewide concern. The facilities shall be constructed and maintained so as not to obstruct or hinder the usual travel on a highway. (2) A political subdivision shall not discriminate among or grant a preference to competing telecommunications providers or broadband providers in the issuance of permits or the passage of any ordinance for the use of its rights-of-way, nor create or erect any unreasonable requirements for entry to the rights-of-way for the providers. (3) A political subdivision shall not regulate a telecommunications provider or a broadband provider based upon the content or type of signals that are carried or capable of being carried over the provider's facilities; except that nothing in this subsection (3) prevents regulation by a political subdivision when the authority to regulate has been granted to the political subdivision under federal law.

C.R.S. § 38-5.5-104 Right-of-way across state land

38-5.5-104. Right-of-way across state land. Any domestic or foreign telecommunications provider or broadband provider authorized to do business under the laws of this state has the right to construct, maintain, and operate lines of communication, switches, and related facilities, and communications and broadband facilities, including small cell facilities and small cell networks, and obtain a permanent right-of-way for the facilities over, upon, under, and across all public lands owned by or under the control of the state, upon the payment of just compensation and upon compliance with reasonable conditions as the state board of land commissioners may require.

C.R.S. § 38-5.5-104.5 Use of local government entity structures

38-5.5-104.5. Use of local government entity structures. (1) Except as provided in subsection (2) of this section and subject to the requirements and limitations of this article 5.5, sections 29-27-403 and 29-27-404, and a local government entity's police powers, a telecommunications provider or a broadband provider has the right to locate or collocate small cell facilities or small cell networks on the light poles, light standards, traffic signals, or utility poles in the rights-of-way owned by the local government entity; except that, a small cell facility or a small cell network shall not be located or mounted on any apparatus, pole, or signal with tolling collection or enforcement equipment attached. (2) If, at any time, the construction, installation, operation, or maintenance of a small cell facility on a local government entity's light pole, light standard, traffic signal, or utility pole fails to comply with applicable law, the local government entity, by providing the telecommunications provider or the broadband provider notice and a reasonable opportunity to cure the noncompliance, may: (a) Cause the attachment on the affected structure to be removed; and (b) Prohibit future, noncompliant use of the light pole, light standard, traffic signal, or utility pole. (3) (a) Except as provided in subsections (3)(b) and (3)(c) of this section, a local government entity shall not impose any fee or require any application or permit for the installation, placement, operation, maintenance, or replacement of micro wireless facilities that are suspended on cable operator-owned cables or lines that are strung between existing utility poles in compliance with national safety codes. (b) A local government entity with a municipal or county code that requires an application or permit for the installation of micro wireless facilities may, but is not required to, continue the application or permit requirement subsequent to July 1, 2017. (c) A local government entity may require a single-use right-of-way permit if the installation, placement, operation, maintenance, or replacement of micro wireless facilities: (I) Involves working within a highway travel lane or requires the closure of a highway travel lane; (II) Disturbs the pavement or a shoulder, roadway, or ditch line; (III) Includes placement on limited access rights-of-way; or (IV) Requires any specific precautions to ensure the safety of the traveling public; the protection of public infrastructure; or the operation of public infrastructure; and such activities either were not authorized in, or will be conducted in a time, place, or manner that is inconsistent with, the approval terms of the existing permit for the facility or structure upon which the micro wireless facility is attached.

C.R.S. § 38-5.5-105 Power of companies to contract

38-5.5-105. Power of companies to contract. Any domestic or foreign telecommunications provider or broadband provider has the power to contract with any individual; corporation; or the owner of any lands, franchise, easement, or interest therein over or under which the provider's conduits; cable; switches; communications or broadband facilities, including small cell facilities and small cell networks; or related appurtenances and facilities are proposed to be laid or created for the right-of-way for the construction, maintenance, and operation of the facilities or for the erection, maintenance, occupation, and operation of offices at suitable distances for the public accommodation.

C.R.S. § 38-5.5-106 Consent necessary for use of streets

38-5.5-106. Consent necessary for use of streets. (1) (a) This article 5.5 does not authorize any telecommunications provider or broadband provider to erect, within a political subdivision, any poles or construct any communications or broadband facilities, including small cell facilities and small cell networks; conduit; cable; switch; or related appurtenances and facilities along, through, in, upon, under, or over any public highway without first obtaining the consent of the authorities having power to give the consent of the political subdivision. (b) A telecommunications provider or broadband provider that, on or before July 1, 2017, either has obtained consent of the political subdivision having power to give consent or is lawfully occupying a public highway in a political subdivision need not apply for additional or continued consent of the political subdivision under this section. (c) Notwithstanding any other provision of law, a political subdivision's consent given to a telecommunications provider or a broadband provider to erect or construct any poles, or to locate or collocate communications and broadband facilities on vertical structures in a right-of-way, does not extend to the location of new facilities or to the erection or construction of new poles in a right-of-way not specifically referenced in the grant of consent. (2) (a) The consent of a political subdivision for the use of a public highway within its jurisdiction shall be based upon a lawful exercise of its police power and shall not be unreasonably withheld. (b) A political subdivision shall not create any preference or disadvantage through the granting or withholding of its consent. A political subdivision's decision that a vertical structure in the right-of-way, including a vertical structure owned by a municipality, lacks space or load capacity for communications or broadband facilities, or that the number of additional vertical structures in the rights-of-way should be reasonably limited, consistent with protection of public health, safety, and welfare, does not create a preference for or disadvantage any telecommunications provider or broadband provider, provided that such decision does not have the effect of prohibiting a provider's ability to provide service within the service area of the proposed facility.

C.R.S. § 38-5.5-107 Permissible taxes, fees, and charges

38-5.5-107. Permissible taxes, fees, and charges. (1) (a) No political subdivision shall levy a tax, fee, or charge for any right or privilege of engaging in a business or for use of a public highway other than: (I) A license fee or tax authorized under section 31-15-501 (1)(c), C.R.S., or article XX of the state constitution; and (II) A street or public highway construction permit fee, to the extent that such permit fee applies to all persons seeking a construction permit. (b) All fees and charges levied by a political subdivision shall be reasonably related to the costs directly incurred by the political subdivision in providing services relating to the granting or administration of permits. Such fees and charges also shall be reasonably related in time to the occurrence of such costs. In any controversy concerning the appropriateness of a fee or charge, the political subdivision shall have the burden of proving that the fee or charge is reasonably related to the direct costs incurred by the political subdivision. All costs of construction shall be borne by the telecommunications provider or broadband provider. (2) (a) Any tax, fee, or charge imposed by a political subdivision shall be competitively neutral among telecommunications providers and broadband providers. (b) Nothing in this article or in article 32 of title 31, C.R.S., shall invalidate a tax or fee imposed if such tax or fee cannot legally be imposed upon another telecommunications provider, broadband provider, or service because of the requirements of state or federal law or because such other provider is exempt from taxation or lacks a taxable nexus with the political subdivision imposing the tax or fee. (c) If a political subdivision imposes a tax on a telecommunications provider or broadband provider and such tax does not apply to other providers of comparable telecommunications services or broadband services due to the language of the ordinance or resolution that imposes the tax, then the governing body of the political subdivision shall take one of the following two courses of action: (I) If it can do so without violating the election requirements of section 20 of article X of the state constitution, the governing body shall amend the ordinance or resolution that imposes the tax so as to extend the tax to providers of comparable telecommunications services or broadband services; or (II) If an election is required under section 20 of article X of the state constitution, the governing body shall cause an election to be held in accordance with said section 20 to authorize the extension of the tax to providers of comparable telecommunications services or broadband services. If the extension of the tax is not approved by the voters at such election, then the existing tax shall no longer apply to the providers that had been subject to the tax immediately before the election. (3) Taxes, fees, and charges imposed shall not be collected through the provision of in-kind services by telecommunications providers or broadband providers, nor shall any political subdivision require the provision of in-kind services as a condition of consent to use a highway. (4) The terms of all agreements between political subdivisions and telecommunications providers or broadband providers regarding use of highways shall be matters of public record and shall be made available upon request pursuant to article 72 of title 24, C.R.S. (5) Nothing in this section affects the manner in which the property tax administrator values a public utility under article 4 of title 39, C.R.S. (6) Nothing in this article affects the ability of a political subdivision to require and grant a cable franchise to a cable operator seeking to provide cable television service within the political subdivision and to obtain any consideration or impose any conditions in a cable franchise, unless otherwise prohibited by federal law. rator values a public utility under article 4 of title 39, C.R.S. (6) Nothing in this article affects the ability of a political subdivision to require and grant a cable franchise to a cable operator seeking to provide cable television service within the political subdivision and to obtain any consideration or impose any conditions in a cable franchise, unless otherwise prohibited by federal law. (7) As used in this section, "public highway" or "highway" as otherwise defined in section 38-5.5-102 (6) does not include excess and remainder rights-of-way under the department of transportation's jurisdiction.

C.R.S. § 38-5.5-108 Pole attachment agreements - limitations on required payments

38-5.5-108. Pole attachment agreements - limitations on required payments. (1) Neither a local government entity nor a municipally owned utility shall request or receive from a telecommunications provider, broadband provider, or cable television provider, as defined in section 602 (5) of the federal "Cable Communications Policy Act of 1984", in exchange for permission to attach small cell facilities, broadband devices, or telecommunications devices to poles or structures in a right-of-way, any payment in excess of the amount that would be authorized if the local government entity or municipally owned utility were regulated pursuant to 47 U.S.C. sec. 224, as amended. (2) A municipality shall not request or receive from a telecommunications provider or a broadband provider, in exchange for or as a condition upon a grant of permission to attach telecommunications or broadband devices to poles, any in-kind payment.

C.R.S. § 38-5.5-109 Notice of trenching - permitted access

38-5.5-109. Notice of trenching - permitted access. (1) (a) The state or a political subdivision shall provide notice on a competitively neutral basis to broadband providers of any utility trenching project that it conducts, but notice is not required for emergency repair projects. The state or political subdivision shall provide the notice a minimum of ten business days prior to the start of the project involving trenching. (b) The department of transportation shall maintain a public list of all broadband providers that would like to receive notice of a utility trenching project and the providers' addresses on the website it maintains. To be eligible to receive notice under paragraph (a) of this subsection (1), a broadband provider must request the department of transportation to be included in the department list. A political subdivision may rely on the department list when making its notifications, and such notifications may be made by electronic mail. (2) (a) For any trenching project conducted by the state or a political subdivision, the state or political subdivision shall allow joint trenching by broadband providers on a nonexclusive and nondiscriminatory basis for the placement of broadband facilities, except as set forth in paragraph (b) of this subsection (2). This subsection (2) does not limit the ability of the state, political subdivision, or any private entity to share the costs of construction related to the trenching project with the broadband provider. (b) The state or a political subdivision may deny joint trenching by broadband providers if the joint trenching will hinder or obstruct highway safety or the construction, maintenance, operations, or related regulation of highway facilities or if it is not feasible because it will delay the repair or construction of a political subdivision's water, wastewater, electricity, or gas line or because collocation with a political subdivision's water, wastewater, electricity, or gas line will hinder or obstruct the maintenance or operations of a political subdivision's water, wastewater, electricity, or gas facilities. (3) (a) Nothing in this section is intended to preempt or otherwise replace requirements for joint trenching that may be imposed by a political subdivision. (b) Nothing in this section requires a private entity undertaking a trenching project to allow a broadband provider to participate in the trenching project. (c) Any provision in this section that conflicts with federal law is unenforceable. (d) Nothing in this section shall be construed to prevent or delay commencement or progress of a construction, maintenance, or trenching project. (4) As used in this section, "trenching" means a construction project in which a highway right-of-way surface is opened or removed for the purpose of laying or installing conduit, fiber, or similar infrastructure in excess of one mile in length. "Trenching" does not mean any other activity or project for the construction or maintenance, including drainage or culvert work, of a highway facility.

Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://leg.colorado.gov/sites/default/files/images/olls/crs2024-title-38.docxFetched: 10/6/2026