Fiber Leases & Right of Way (ROW) Use
Overview
June 5, 2024
CDOT has historically been compensated (with either cash or an in-kind exchange) for the use of CDOT ROW for telecommunication installations by the unsolicited proposal as part of CDOT’s Public-Private Initiatives Program (C.R.S. §§ 43-1-1201 et seq). The unsolicited proposal process and CDOT’s Public-Private Initiatives Program still remain a viable option for all entities seeking use of CDOT’s ROW. A fee structure outlined herein provides a second option for applicants/permittees seeking use of CDOT’s ROW to work directly through the permitting process.
If you are installing longitudinal, buried fiber infrastructure within CDOT ROW you must follow one of two paths:
- Submit an unsolicited proposal demonstrating compensation and value to the CDOT’s mission. Entities can also lease CDOT’s excess dark fiber capacity following this process. See the heading below for steps on the process “CDOT’s Public-Private Initiatives Program” ; or
- Apply for a Fiber Communication Permit, which will require an initial, one-time Permitting Fee and an annually billed Property Use Rate. See the heading below for background on the developed fee structure: “Permit Process: Fee Structure for ROW Access for Fiber”. To apply for a permit, visit this page.
CDOT is constantly striving to improve the efficiency and productivity of these steps and processes. All updates or changes will be reflected on this web page.
CDOT’s Public-Private Initiatives Program
- Per §43-1-1203, C.R.S., the department may consider an unsolicited proposal only if the proposal:
- Is innovative and unique;
- Is independently originated and developed by the proposer; (please put the proposal on your entity’s letterhead)
- Is prepared without department supervision;
- Is not an advance proposal for a known department requirement that can be acquired by competitive methods;
- Includes sufficient detail and information for the department to evaluate the proposal in an objective and timely manner and to determine if the proposal benefits the department.
- Please make sure the unsolicited proposal is signed by an authorized representative of the entity making the request.
- For CDOT's template for an unsolicited proposal:
Please email: [email protected] for more details - All unsolicited proposal requests submitted to CDOT become the property of CDOT and are subject to the Colorado Open Records Act (CORA). Proposers are advised to familiarize themselves with the provisions of the CORA. In no event shall the State, the Transportation Commission, or CDOT be liable to a proposer for the disclosure of all or a portion of an unsolicited proposal request submitted by the proposer.
- To initiate a request with CDOT please email [email protected], please include the unsolicited proposal:
- The Intelligent Transportation Systems (ITS) Branch will notify the requester that an unsolicited proposal was received within 2 weeks.
- ITS evaluates the feasibility of the application, including capacity of infrastructure or project timeline concerns which may require field review or testing (varies 1-3 months)
- Per Procedural Directive 1504.2 CDOT's Fiber Management Team evaluates the unsolicited proposal by the following factors:
- Unique and innovative methods, approaches, or concepts demonstrated by the proposal;
- Scientific, technical, or socioeconomic merits of the proposal;
- Potential contribution of the proposal to the department’s mission;
- Capabilities, related experience, facilities, or techniques of the proposer or unique combination of these qualities that are integral factors for achieving the proposal objectives;
- Qualifications, capabilities, and experience of the proposed principal investigator, team leader, or key personnel who are critical in achieving the proposal objectives; and
- Any other factors appropriate to a particular proposal.
- If the request is for a dark fiber lease, ITS will generate a dark fiber lease quote for the partner to ensure the fee structure and cost are consistent with what the partner can move forward with.
- CDOT’s Dark Fiber Calculator:
Email: [email protected] for more details - The Department accepts the proposal if the proposal receives a favorable evaluation and if the department makes a written determination.
- ITS will notify the requester of the evaluation, whether accepted or denied, in writing with clear reasons for approval and denial.
- Agreement Voting History: Please email [email protected]
- Once a favorable written determination is complete, ITS will work with the partner to generate a vendor number to conduct business with the State. (1-2 months)
- ITS will share the appropriate contract template with the partner. The partner will conduct the initial review and provide the template back with questions and proposed revisions. (Expected timeline: Dependent on partner)
- Once ITS receives a redlined version of the State contract template, ITS will initiate the necessary contracting process with the CDOT’s Center for Procurement & Contract Services who will shepherd the agreement through legal reviews and negotiations.
- CDOT will work with the partner entity to resolve redlines, complete legal, State Controller, and OIT reviews as needed to finalize the agreement document.
- Both parties will sign the agreement to fully execute the partnership.
- ITS will initiate allocations of fiber as needed and introduce the partner entity to applicable CDOT stakeholders to implement any construction and project deliverables. Including the permitting process for construction activity and work within CDOT ROW. More information Utility & Special use permits can be found on the CDOT Permits - Utility & Special Use
- If applicable, ITS will initiate billing in accordance with the terms of the executed agreement.
Permit Process: Fee Structure for ROW Access for Fiber
In February 2022, the Governor issued Executive Order D 2022 009 (restated in June in EO D 2022 023) and Senate Bill 22-083, Accelerating Broadband Deployment in Colorado. This Executive Order and Senate Bill directed CDOT to make improvements to its ROW program, specifically including a fee structure to facilitate access to CDOT rights of way for broadband (fiber).
On December 20, 2023, the Transportation Commission Approved Resolution #TC-2023-12-08 (“Transportation Commission Resolution #8”). TC Resolution #8 includes, among other things, adopting initial and annual payments for fiber builds within CDOT ROW. Currently, the initial, one-time installment fee for permitting costs is $0.05 per foot. The current annual Property Use Surcharge is $0.10 per foot for urban counties. Urban counties currently include Adams, Arapahoe, Boulder, Denver, Douglas, El Paso, Jefferson, Larimer and Weld. The current annual Property Use Surcharge is $0.03 per foot for the remaining non-urban counties. The Department will adjust the one-time installment fee and Property Use Surcharges for both urban and non-urban counties by implicit price deflator-gross national product (IPD-GNP) annually in December. Adjustments to the fee structure will be applied to new permit applications.
Adopted Fee Structure for ROW Access and Use for Broadband (Fiber) Deployment
$0.05 per foot
- $0.10 per foot for urban counties* (>200k population)
- $0.03 per foot for rural counties
*Urban counties currently include Adams, Arapahoe, Boulder, Denver, Douglas, El Paso, Jefferson, Larimer and Weld
Additional Information: CDOT’s Legal Authority for ROW Compensation
Colorado statutory law addresses telecommunications providers’ access to public rights-of-way in C.R.S. §§ 38-5.5-102 through 109, but any limitation contained in these statutes on what telecommunications providers can be charged applies only to local government entities and political subdivisions. These limitations do not apply to CDOT because CDOT is a principal department of the State of Colorado and is neither a “political subdivision” or “local government entity” as defined in C.R.S. § 38-5.5-102(5). The fact that the Colorado Legislature meant to exclude CDOT from the fee limitations contained in C.R.S. § 38-5.5-102, et seq. is made clear by listening to pertinent legislative history recording.
Several other provisions in state law clearly focus on CDOT receiving valuable consideration for use of state highway ROW. Per C.R.S. §§ 43-1-1201, et seq, CDOT can enter into a non-exclusive public-private initiative agreement with a telecommunications company, but CDOT must either receive a commensurate contribution for the use of CDOT’s ROW or be able to offset the benefit that the private telecommunications company will be receiving with a public benefit. In addition, federal and state law also requires CDOT to obtain fair market value for the use and disposal of state highway right-of-way. See, e.g., C.R.S. §43-1-210(5).
Lastly, the Federal Telecommunications Act specifically allows an entity like CDOT to require fair and reasonable compensation from telecommunications providers on a competitively neutral and nondiscriminatory basis for the use of public rights-of-way. See 47 U.S.C.A. § 253(c).
