Arizona Laws 10-2085. Expanded use for broadband service; just compensation; notice; fees; definitions
A. For the purposes of providing broadband service, if a cooperative, directly or through its affiliate, expands the use of an existing easement or other property right that is owned, held or used by the cooperative to provide electricity or other services and the expanded use reduces the fair market value of the property over which the easement or other property right runs, the property owner is entitled to just compensation from the cooperative.
Terms Used In Arizona Laws 10-2085
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Address: means a mailing address. See Arizona Laws 10-140
- Affiliate: means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with another person. See Arizona Laws 10-2051
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Broadband service: means providing access and transport to the internet, computer processing, information storage or protocol conversion at a download rate of at least twenty-five megabits per second and at an upload rate of at least three megabits per second. See Arizona Laws 10-2051
- Class: refers to a group of memberships that have the same rights with respect to voting, dissolution, redemption and transfer. See Arizona Laws 10-3140
- Cooperative: means a corporation that is organized under this article or that becomes subject to this article in the manner provided in this article. See Arizona Laws 10-2051
- Court: means the superior court of this state. See Arizona Laws 10-140
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Proceeding: includes a civil suit and a criminal, administrative and investigatory action. See Arizona Laws 10-140
- Property: includes both real and personal property. See Arizona Laws 1-215
- written: includes blockchain technology as defined in section 44-7061. See Arizona Laws 10-140
B. The property owner must commence an action in the superior court for just compensation based on diminution in value not later than eighteen months after the date that the cooperative provides notice to the property owner of the expanded use for broadband service. If an action is not commenced within this time, the expanded use is deemed fully vested in the cooperative and its affiliate without the need to pay just compensation and the expanded use runs with the land.
C. Notice under subsection B of this section is effective if sent by first class mail to the last known address of the property owner, by a printed insertion in the property owner’s electric bill or by other commonly used publication or communication channels employed by the cooperative.
D. In an action for just compensation based on a claim of expanded use for broadband service all of the following apply:
1. The court or jury shall ascertain and assess the diminution in value of the property based on the difference between the fair market value of the entire parcel immediately before the expanded use and the fair market value of the entire parcel immediately after the expanded use.
2. Evidence of revenues or profits derived from or the rental value of an assembled communications corridor is not admissible in determining fair market value.
3. On payment of just compensation, the expanded use for broadband service is deemed fully vested in the cooperative and its affiliate and the expanded use runs with the land.
E. A class action may not be maintained against a cooperative or its affiliate in any action for just compensation based on a claim of expanded use for broadband service.
F. Actions for just compensation as described in this section include trespass, inverse condemnation and other similar causes of action.
G. This section does not prohibit a cooperative or its affiliate from reaching an agreement with a property owner to waive a claim for just compensation related to expanded use for broadband service or from acquiring the right to use the property for broadband service by other lawful means.
H. If excavation is required to install fiber-optic cable or other underground facilities to provide broadband service, the cooperative or its affiliate shall provide written notice to the property owner of the expanded use for broadband service before excavation. The cooperative or its affiliate shall send the notice by first class mail to the last known address of the property owner, by a printed insertion in the property owner’s electric bill or by other commonly used publication or communication channels employed by the cooperative or its affiliate. A notice sent to a property owner entitled to notice under this subsection must include all of the following:
1. The name and mailing address of the cooperative or its affiliate.
2. The mailing address, telephone number and email address for a representative of the cooperative or its affiliate.
3. A summary statement describing the activities to be conducted during the excavation.
4. The approximate dates when the excavation will start and end.
I. The notice prescribed in subsection H of this section is not required before a cooperative’s or its affiliate’s use of an easement or other property right that includes an authorization for excavation for purposes of providing broadband service. Failure to provide the notice prescribed in subsection H of this section:
1. Prohibits the cooperative or its affiliate from proceeding with an excavation until the notice is provided.
2. Does not invalidate or prevent the cooperative or its affiliate from expanding the use of the easement or property right as otherwise described in this section.
J. Any pole attachment agreement between a cooperative and an affiliate for broadband service pursuant to section 10-2057, subsection A, paragraph 17 that includes attachment to the cooperative’s poles shall specifically require the pole attachment fees that are charged to any unaffiliated video service provider or any unaffiliated telecommunications provider to be equal to the pole attachment fees charged to the affiliate where the affiliate and video service provider or telecommunications provider are jointly attached to the same pole.
K. For the purposes of this section:
1. "Telecommunications provider" has the same meaning prescribed in section 9-1401 or 11-1901.
2. "Video service provider" has the same meaning prescribed in section 9-1401 or 11-1901.