Using Private Rights-of-Way for Fiber

As if the broadband industry didn’t already have enough obstacles, a new issue has arisen in Virginia. A couple in Culpepper County, John and Cynthis Grano, have sued the Rappahannock Electric Cooperative to stop it from putting fiber on existing pole lines that are located on a private easement.

To put this lawsuit into perspective, Virginia law in the past would have required a utility to negotiate a private easement to gain access to the placement of utility networks on private land. But in 2020, the legislature passed a new law that allows electric and communications utilities to add fiber along existing aerial and buried rights-of-way without getting additional permission from property owners. This law was passed to make it easier to build fiber in rural Virginia.

The Cooperative was getting ready to embark on a $600 million rural fiber project to bring broadband to rural customers, but this lawsuit has caused the Cooperative to halt plans for now.

As is usual with lawsuits, there are always additional facts to consider. The rights-of-way in question are not along a road in a public right-of-way. Instead, the fiber route cuts across the landowner’s property, which also is the site for one of the Cooperative’s electric substations. Prior to the law being passed, the Cooperative had offered a $5,000 fee to use the rights-of-way on the property.

It might seem logical that the new law would have preempted this kind of lawsuit – because this situation is exactly what legislators had in mind when they passed the law. But I’ve learned in this industry that a new law is only truly secure after the law has been successfully tested in court.

This case has already made it through the first round of the courts, where a U.S. District Court sided with the property owners. The ruling said that the new law stripped the property owners of existing rights that had been established in the 1989 easement agreement with the Cooperative. The court said that landowners had lost property value even without the Cooperative trying to hang new fiber on existing easements.

This lawsuit has to bring a chill to any fiber builder in the country that relies on private rights-of-way and easements to build their project. The right to use public rights-of-way has been long established and cemented by challenges to laws early in the last century. This new Virginia law tried to grant the same status to private easements that have always been given to public rights-of-way – and that is a new area of law.

I would have to assume that for this issue to stop the fiber expansion that the Cooperative must have a lot of electric lines that use private rights-of-way. Electric grids routinely cross private land – the large tower transmission grids mostly use private rights-of-way, and utilities rarely build high-voltage routes along public roads. If the issue was only with this one farm, the Cooperative could probably bypass it, but I’m sure the issue applies to many other properties as well.

The lawsuit should raise a red flag for any ISP that has rights-of-way on private land. There are a lot more private easements in place than you might suppose. Many subdivisions own their own roads. Private roads are routine in rural areas. ISPs routinely rent land for huts and cabinets.

None of this will be any comfort to the many households that were slated to get fiber broadband. Electric cooperatives like Rappahannock are leading the way in a lot of rural America for bringing fiber to areas with little or no current broadband. Virginia has a state goal to solve the rural broadband gap by the end of 2024, and this lawsuit will put a damper on those plans. Just a little side note that will drive broadband advocates crazy, the property owner in this case has subscribed to Starlink and is not impacted by having to wait for better broadband.