As used in this part 6, unless the context otherwise requires:
(1) Attached facility means a broadband facility, as defined in section 38-5.5-102 (2), or a broadband network or any portion of a broadband network, in each case located substantially:
(a) Aboveground and attached to an electric utility's electric service infrastructure; or
(b) Underground in an electric easement and existing before the delivery of notice pursuant to section 40-15-602 (2).
(2) Broadband affiliate means a commercial broadband supplier that is a separate legal entity from any electric utility but is controlled by, controls, or is under common control with an electric utility.
(3) Commercial broadband service means broadband service, as that term is defined in section 38-5.5-102 (1), or broadband internet service.
(4) (a) Commercial broadband supplier means:
(I) A provider of broadband internet service or an existing broadband provider, as that term is defined in section 38-5.5-102 (3), or a person that intends to provide broadband internet service or broadband service; or
(II) A person that directly or indirectly sells, leases, or otherwise transfers attached facilities or a right to install, operate, maintain, or use attached facilities for another person's provision of commercial broadband service or a person that intends to sell, lease, or otherwise transfer attached facilities or a right to install, operate, maintain, or use attached facilities.
(b) Commercial broadband supplier does not include an electric utility.
(5) Electric easement means a recorded or unrecorded easement, right-of-way under section 38-4-103 or otherwise, or similar right in or to real property, including prescriptive rights, no matter how acquired, held by an electric utility for the siting of electric service infrastructure or for the purpose of delivering electric service, regardless of whether:
(a) The easement or other right is exclusively for the provision of electric service or for use in connection with commercial broadband service, telecommunication service, or another purpose; or
(b) The electric utility or a commercial broadband supplier uses the easement or other right to provide commercial broadband service.
(6) Electric utility has the meaning set forth in section 40-42-102 (8); except that the term does not include an investor-owned utility, a municipally owned utility, or a municipally owned power authority.
(7) Interest holder means a property owner or other person with an interest in the real property upon which an electric easement is located.
(8) Memorandum means a written instrument that includes, at a minimum, the name and address of the electric utility, the date on which the notice was mailed, and the information required to be included in a notice under section 40-15-602 (2)(b)(III) and (2)(b)(IV).
(9) Notice means a written letter substantially complying with the requirements set forth in section 40-15-602 (2)(b), which notice shall be deemed delivered on the date postmarked or otherwise time stamped.
(10) Person has the meaning set forth in section 40-1-102 (10).
(11) Property owner means a person with a recorded fee simple interest in real property upon which an electric easement is located.
(12) Request for notice means a written instrument recorded by an interest holder in compliance with the requirements set forth in section 40-15-602 (2)(c).
Source: L. 2019: Entire part added, (SB 19-107), ch. 424, p. 3704, � 1, effective August 2. L. 2021: (6) amended, (SB 21-072), ch. 329, p. 2114, � 3, effective June 24.
40-15-602. Electric easements - commercial broadband service - broadband affiliates - notice required. (1) With regard to real property subject to an electric easement, if an electric utility, or any commercial broadband supplier designated by the electric utility to act on its behalf, complies with the notice and filing requirements set forth in subsection (2) of this section, the electric utility holding the electric easement may, subject to subsection (4) of this section and without the consent of an interest holder in the real property subject to the electric easement, take the following actions to the extent not already permitted by the electric easement:
(a) Install, maintain, or own, or permit any commercial broadband supplier, including a broadband affiliate, to install, maintain, or own, an attached facility for operation by a commercial broadband supplier, including a broadband affiliate, in providing commercial broadband service; and
(b) Lease or otherwise provide to a commercial broadband supplier, including a broadband affiliate, any excess capacity of attached facilities for purposes of providing commercial broadband service.
(2) (a) At least thirty days before first exercising its rights under one or both of subsection (1)(a) or (1)(b) of this section with respect to an electric easement or portion of an electric easement, an electric utility or its designated commercial broadband supplier must send notice to each property owner that holds an interest in the real property subject to the electric easement and any other interest holder that has recorded a request for notice and must record a memorandum in the office of the county clerk and recorder in each county in which the electric utility is exercising its rights under subsection (1) of this section. An electric utility or its designated commercial broadband supplier may only commence exercising its rights under subsection (1) of this section upon delivery of sufficient notice.
(b) A letter providing notice pursuant to this subsection (2) must:
(I) Be sent by certified mail from or on behalf of the electric utility to the property owner and any interest holder that has recorded a request for notice at each of the following, as applicable:
(A) The last-known address for the property owner based on the electric utility's records;
(B) The address listed for the property owner in the records of the office of the county assessor; and
(C) The address set forth in a request for notice;
(II) Include the name, address, telephone number, and named point of contact for the electric utility and, if delivered by a commercial broadband supplier designated by the electric utility, the name, address, telephone number, and named point of contact for the designated commercial broadband supplier;
(III) Include the property address; the recording number, if any, of the electric easement or recorded memorandum of the electric easement; a general description of any existing electric service infrastructure currently located in the electric easement; and the approximate location of the electric easement, which need not include a legal description, land title survey, plat, or other designation of the exact boundaries of the electric easement;
(IV) Include:
(A) A citation to this part 6; and
(B) A copy of the language of subsection (1) of this section with an indication of whether the electric utility is exercising rights under one or both of subsection (1)(a) or (1)(b) of this section;
(V) Give an estimated time for the start of installation or construction with regard to any new installation or construction that will occur in connection with the exercise of rights under subsection (1) of this section;
(VI) Include a statement regarding the right and obligation of the electric utility, or its designated commercial broadband supplier, to record a memorandum; and
(VII) Include a statement regarding the statute of limitations for the interest holder to file a claim with respect to the electric utility's exercise of rights.
(c) An interest holder that desires to obtain notice under this part 6 at a specific address may file in the office of the county clerk and recorder for the county in which the real property is situated a request for notice that identifies the interest holder's name and address, the instrument granting the interest holder's interest in the property, and the recording number of the instrument or a recorded memorandum of the instrument.
(3) Upon exercise of the rights set forth in subsection (1) of this section, the rights run with the land and are assignable by the electric utility.
(4) The terms and conditions of a written electric easement apply to an electric utility's uses of the electric easement set forth in subsection (1) of this section, except those terms and conditions that would prohibit the electric utility's exercise of rights under subsection (1) of this section. A prohibition on aboveground electric service infrastructure contained within a written electric easement constitutes a prohibition on aboveground attached facilities. In connection with the exercise of rights under subsection (1) of this section, an electric utility or its designated commercial broadband supplier must comply with any notice requirements contained in a written electric easement held by the electric utility related to entering the real property subject to the electric easement or commencing any construction or installation on the real property.
(5) Nothing in this part 6 requires an electric utility to comply with subsection (2) of this section in order to take any action or exercise any rights under an electric easement that are already permitted within the scope of the electric easement. Unless expressly prohibited by the terms of an electric easement, an electric easement will be deemed to allow an electric utility to install, maintain, or own, or permit a third party to install, maintain, or own for beneficial use by the electric utility, telecommunications facilities and equipment for use in connection with the electric utility's provision of electricity.
Source: L. 2019: Entire part added, (SB 19-107), ch. 424, p. 3706, � 1, effective August 2.