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News and comments on community broadband networks, the communities deploying them and the technologies that support them. Published by Denise Frey and Al Bonnyman.

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Thursday, October 02, 2003


Karl Bode: Train Track Trickery -- Landowners and the right of way debate

"The telecom tactic of burying cable along railroad lines to avoid compensating landowners continues to bring an endless stream of litigation. AT&T is being accused in more than 32 different states that the company snuggled up to rail-companies in order to bury fiber-optic cable on private land without paying home owners for the privilege. Right of Way laws allow railroads to build tracks and related equipment on private property, but homeowner lawyers argue they've never legally had the right to allow the telecom industry to build infrastructure on that land."


1000s of miles of fiber have been legally laid along utility, highway or railroad rights of way in the U.S. without anyone speaking with a homeowner.

The issues can get very technical from a legal standpoint.

The cases Karl cites are probably not due to a big greedy corporation deliberately ignoring property rights and screwing the little guy for a buck. If you absolutely have to have a villain, then it's going to be a lot less colorful -- perhaps a big railroad bureaucracy unaware that some of its' 75-year old deeds have slightly different wording from all their others. Or a big telco bureaucracy in a rush to build out its' network that doesn't realize real estate laws in one state might be subtly different from those in other state.

In many places, the railroads own the land they're on. In others, they have easements to cross a property owner's land. Whether or not they can add a fiber cable to the right of way without the property owner's permission depends on the exact wording of the easement document, which was probably written long before fiber (or even telephones in some cases) was invented. Perhaps a telegraph line is allowed -- how do state courts interpret using fiber in its' place?

Does the easement give the railroad a right of way? Or just a right of way for the purposes of operating a railroad? The distinction sounds semantic but makes a big difference in these cases.

If the easement is restricted to railroad operation only, then it's probably still permissible for the railroad to bury a fiber if it's for their own internal communications necessary to operate the railroad. (The railroads use a lot of fiber for internal communications.) If that's legal, is it OK for the railroad to then lease a few extra fibers? If that's OK, how about a 3rd party laying it's own cable, then providing the railroad with some fibers for railroad use? State laws and legal precedents also play into this and the answers to these questions will vary from state to state.

There's a whole organization devoted to nothing but these sorts of issues:
International Right of Way Association (IRWA)
And there are 100s of lawyers, surveyors and right of way professionals that specialize in these issues.

And, while I really respect Karl, I disagree with his characterization:
"The telecom tactic of burying cable along railroad lines to avoid compensating landowners continues to bring an endless stream of litigation." Avoiding compensating landowners is not the primary reason to use railroad rights of way.

The primary reason to deploy fiber along transportation or utility corridors is the simplicity of dealing with one party. Few long distance fiber lines would ever have been built if the telcos had had to go and negotiate with every property owner between N.Y and L.A., each with their own needs and concerns. The cable routing would certainly not be in a straight line (if it ever got built.)

These corridors are often already patrolled and supervised for safety issues anyway, a plus for fiber security. Also, stringing cables aerially on power lines or burying them close to RR tracks minimizes property damages elsewhere from digging up yards and parking lots.

The same issues apply to other operators of utility (pipelines, electric power) and transportation (highways) corridors.


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