An Albuquerque federal judge has issued a preliminary injunction against the state’s Department of Transportation, ordering the agency to approve two public right-of-way permits to a Santa Fe internet company that intends to provide the broadband in underserved communities.
U.S. District Judge Kea W. Riggs’ June 28 ruling comes as the state undertakes efforts to ensure broadband availability throughout New Mexico, a state that ranks among the bottom in access High-speed Internet.
NMSurf Inc., a telecommunications and wireless provider based in Santa Fe, wants to use the free right of way to install utility poles to provide internet and other services to communities between Santa Fe and Albuquerque, said Albert Catanach, Chairman and CEO of the company. .
One of those poles is on the right-of-way of Interstate 25 near Richards Avenue in Santa Fe, and the other is along NM 14 about 2 miles south of Golden, Catanach said.
Catanach said his company has worked successfully in the past with the Department of Transportation to secure rights of way for broadband projects. But in November, he said, the department rejected NMSurf’s request.
NMSurf filed a complaint against the department earlier this year.
The department argued that its rights of way are exempt from the provisions of the Advanced Wireless Consumer Infrastructure Investment Act of 2018, designed to establish fixed fees for internet providers and allow them to ” access public service structures.
The ministry also argued that NMSurf is not a public service providing an essential service to consumers and therefore is not eligible for free use of public rights of way.
Riggs, in its ruling, said the Department of Transportation failed to provide substantial evidence to back up its claims. The ministry has also failed to prove that it would suffer any harm by allowing access to NMSurf, she wrote.
While local governments can regulate “the placement, construction and modification of personal wireless service facilities,” she wrote, this regulation cannot “prohibit or have the effect of prohibiting the provision of wireless services. personal thread “.
Catanach said: “The judge was pretty clear in his order. Hopefully the ministry will take into account the order and the issuance of permits. “
NMSurf asked the agency to issue the permits, but “we have not heard from them,” he said.
“I don’t know if they’re going to appeal. I don’t see why they would appeal because it only hurts New Mexicans, ”he added.
Transport Ministry spokeswoman Marisa Maez wrote in an email Tuesday that the agency is “100% in favor of expanding broadband.”
But, she said, the department has the right to charge private utility companies a fee to install broadband, funds that go into the state road fund to improve and maintain roads.
“Some broadband companies, including NMSurf, think they should be allowed to use the property for free,” she wrote in the email. “Some of these companies are using scare tactics, telling customers that their service charges can double or triple. In reality, an increase passed on to a customer would be minimal, in some cases less than a dollar a year.
The proposed post for the Interstate 25 site sits on a median that would constitute an “obvious and persistent danger to motorist safety,” Maez added.
Catanach responded in an email, “The median I-25 pole will be located in the same area as the other utility poles and power lines and they also have a wireless truss tower nearby with a tank of propane and a generator. I would hardly say it’s dangerous.
State officials have struggled for years to find ways to expand broadband access, an issue highlighted during the coronavirus pandemic, when schools were closed and students learned remotely from home . Many were unable to log in to access their classes due to a lack of internet or inadequate service.
A 2020 report from the company BroadbandNow found that 33% of New Mexico residents – 700,000 – were unable to access high-speed internet.
During the state’s legislative session earlier this year, lawmakers approved two bills aimed at centralizing efforts to address the problem. Governor Michelle Lujan Grisham signed both laws.
Senate Bill 93 creates a new five-person broadband office tasked with creating a plan to connect the entire state to the Internet via broadband or satellite. House Bill 10 calls for the creation of a 15-member Connect New Mexico Council to coordinate broadband efforts.
Catanach said he hopes the efforts will make a difference. Broadband providers could help if they were invited to join the board, he said – but there is no provision in HB 10 to ensure providers have a seat at the table.
“The only way for the state to do all of this is with the service providers,” Catanach said. “We have details. We have the know-how to make it work.