RICHMOND, Va. — Virginia’s Supreme Court has ruled in favor of Norfolk Southern in a fight over broadband companies’ ability to build across rail lines.
In a decision released Thursday, the court found that a 2023 law allowing broadband companies to “take railroad property for nonpublic use” violates a provision in the state constitution and a separate state law addressing eminent domain. Cox Communications had attempted to use the law to cross NS property in eastern Virginia.
The opinion by Justice Teresa Chafin found that Cox “is not a government entity, public service corporation, or public service company. “Therefore, Cox cannot exercise the power of eminent domain for a ‘public use’ … We acknowledge that the expansion of an existing broadband network may benefit the members of the public who would be served by the expansion. Nevertheless, a taking for a ‘public benefit’ is not necessarily a taking for a ‘public use.’”
The 2023 law caps fees the railroad could charge broadband companies at $2,000 per crossing, plus a $5,000 reimbursement for railroad expenses, and designated the State Corporation Commission to address disputes. When NS attempted to charge Cox more than that, the cable company told the railroad it planned to go ahead without entering into an agreement. NS asked the commission for relief, but the commission rejected the railroad’s arguments without a hearing, saying NS had failed to establish an undue hardship. NS then appealed to the state Supreme Court.
Cardinal News reports that state Sen. Bill Stanley, who led the effort for the access bill in that house, called the ruling “just plain wrong,” telling the news site in an exchange of text messages that the decision will allow “greedy railroad companies” to “choose their own private greed over the public need when it comes to broadband deployment in rural and urban parts of Virginia.” He said the issue will be a priority for legislators in either a special session or next year’s regular session.
NS did not respond to a Cardinal News request for comment. CSX has a similar case before the state Supreme Court, and the two railroads have also sued Cox in federal court; that case was stayed pending a state Supreme Court decision. The Association of American Railroads had also filed a federal suit over the law [see “AAR sues …,” Trains News Wire, July 1, 2023], but that case was thrown out when the judge ruled the AAR lacked standing.
