Judge Orders DOT to Give “Public Pathways” Access to ISP

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On June 28, an Albuquerque, NM federal judge ordered the Department of Transportation (DOT) to approve two public right-of-way (ROW) permits to NMSurf Inc. to provide broadband in underserved areas. Governing reported that New Mexico ranks poorly regarding high-speed internet, with 33 percent of residents (700,000) lacking access, according to a 2020 BroadbandNow report. 

NMSurf Inc. president and CEO Albert Catanach said the ISP plans to use ROWs from Santa Fe to Albuquerque to construct utility poles that will house broadband equipment. Although the company has worked successfully with the DOT previously, its request to gain access to the ROWs was denied in November 2020, noted Catanach. NMSurf filed a suit against the DOT in early 2021 over the issue. 

The DOT argued that the ROWs are exempt under the state’s 2018 Wireless Consumer Advanced Infrastructure Investment Act, reported Governing. It also contended that NMSurf is not a public utility and, therefore, ineligible for unrestricted use of public ROWs.

U.S. District Judge Kea W. Riggs ruled that the DOT did not provide sufficient evidence to back its claims, nor did the department prove it would be harmed by allowing NMSurf access. While local governments may regulate “the placement, construction, and modification of personal wireless service facilities,” she wrote that regulation could not “prohibit or have the effect of prohibiting the provision of personal wireless services.”

Catanach said the DOT has yet to issue the permits required to move forward with the ROW infrastructure. According to DOT spokeswoman Marisa Maez, the agency is “100 percent supportive of broadband expansion.” However, she noted that the department has the right to charge public utility companies a fee to access the ROWs. 

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