U.S. District Judge Kea W. Riggs' June 28 ruling comes as the state initiates efforts to ensure broadband is available across New Mexico, a state that ranks near the bottom when it comes to high-speed internet access.
NMSurf Inc., a Santa Fe-based telecommunication and wireless provider, wants to use the free right of way to put up utility poles to provide internet and other services to communities between Santa Fe and Albuquerque, said Albert Catanach, the company's president and CEO.
One of those poles is on the Interstate 25 right of way near Richards Avenue in Santa Fe, and the other is along N.M. 14 about 21/2 miles south of Golden, Catanach said.
Catanach said his company has worked successfully in the past with the Department of Transportation to gain rights of way for broadband projects. But in November, he said, the department denied NMSurf's request.
NMSurf filed the suit against the department earlier this year.
The department argued its rights of way are exempt from provisions in the state's 2018 Wireless Consumer Advanced Infrastructure Investment Act, designed to develop set fees for internet providers and allow them access to public utility structures.
The department also argued NMSurf is not a public utility rendering an essential service to consumers and therefore not eligible for free use of public rights of way.
Riggs, in her ruling, said the Department of Transportation failed to provide substantial evidence to back its claims. Nor did the department prove it would be harmed by allowing NMSurf the access, she wrote.
While local governments may regulate "the placement, construction, and modification of personal wireless service facilities," she wrote, that regulation cannot "prohibit or have the effect of prohibiting the provision of personal wireless services."
Catanach said, "The judge was pretty clear in her order. Hopefully the department will take heed to order and issue permits."
NMSurf has asked the agency to issue the permits, but "we haven't heard from them," he said.
"I don't know if they are going to appeal. I don't see why they would appeal because all it does is hurt New Mexicans," he added.
Department of Transportation spokeswoman Marisa Maez wrote in an email Tuesday the agency is "100 percent supportive of broadband expansion."
But, she said, the department has the right to charge private utility companies a fee to install broadband, funds that go into the state's road fund to improve and maintain roadways.
"Some broadband businesses, including NMSurf, believe they should be allowed to use the property for free," she wrote in the email. "Some of these companies use scare tactics, telling customers their service fees may double or triple. In reality, an increase passed onto a customer would be minimal, in some cases less than one dollar per year."
The pole proposed for the Interstate 25 site is on a median that would be an "obvious and continuing safety hazard to the motoring public," Maez added.
Catanach responded in an email, "The pole for the I-25 median will be located in the same area as other utility poles and electrical lines and they also have a lattice wireless tower close by with a propane tank and generator. I would hardly say that is unsafe."
State officials have been struggling for years with how to expand broadband access, an issue spotlighted during the coronavirus pandemic, when schools were closed and students were learning remotely from home. Many were unable to log on to access their lessons due to a lack of internet or inadequate service.
A 2020 report by the firm BroadbandNow found 33 percent of New Mexico residents — 700,000 — were not able to access high-speed internet.
During the state's legislative session earlier this year, lawmakers approved two bills to centralize efforts to address the problem. Gov. Michelle Lujan Grisham signed both into law.
Senate Bill 93 creates a new five-person broadband office charged 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 the broadband efforts.
Catanach said he hopes the efforts make a difference. Broadband providers could help if they were invited to join the council, he said — but there is no provision in HB 10 to ensure providers have a seat at the table.
"The only way the state can do any of this is with the service providers," Catanach said. "We have details. We have the know-how to make it work."
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