Constitutional challenge may stall rural Va. broadband initiatives

‘... property owners are essentially giving up additional rights for these for-profit companies to use their land as profit’

The Rappahannock Electric Cooperative is being taken to court for acting lawfully under a new Virginia statute that may violate the constitutional rights of property owners.

The lawsuit could have signi cant ramications for REC’s plans to expand its ber optic utility network, a project that REC says would improve its detection of and response to outages. The ber optic project would not only connect more than 130 substations, oces and radio towers but also facilitate future broadband development in its service area.

On Oct. 28, Culpeper homeowners John and Cynthia Grano led a complaint with the U.S. District Court alleging that REC unlawfully deprived

them of “their constitutional property and contract rights under the color of state law, in violation of the U.S. Constitution’s Due Process Clauses of the Fih and Fourteenth Amendments, and the Contracts Clause of Article I, Section 10.”

Earlier this year the Virginia General Assembly passed House Bill 831 authorizing utility companies to use existing “easements for the location and use of electric and communications facilities” for the purpose of expanding broadband networks on the basis that doing so is in the public interest.

But the Granos are arguing that the bill, now adopted as Virginia Code § 55.1-306.1, is unconstitutional, and by acting in compliance with the new code REC is violating their rights.

“My clients are not against rural broadband, they are for it and they are for it being done constitutionally,” said Joshua Baker, the Granos’ lead attorney. Baker is a partner at Waldo & Lyle, a Norfolk-based law rm that specializes in defending property owners in cases involving eminent domain.

“This suit has been brought under the U.S. Constitution to say that it’s an unconstitutional taking of property

rights without compensation and a denial of due process,” Baker said. “We’re pursuing the repeal of the legislation as part of this lawsuit.”

Though REC obtained permission from property owners to erect and

maintain power lines on their properties, Baker says the installation of fiber optic was not part of the bargain.

“You might look at [fiber optic] and say, well it’s just another wire, what’s the big deal? The big deal is that those wires are owned by for-profit companies,” Baker said.

“They’re not giving away broadband,” Baker continued, “and these property owners are essentially giving up additional rights for these for-profit companies to use their land as profit. It’s not just the existence of that line, but those lines need maintenance [and] updating.”

Casey Hollins, Director of Communications and Public Relations for REC, said that though this lawsuit has “hampered” the cooperative’s efforts to connect their infrastructure with fiber, REC is not giving up.

“Even still,” Hollins wrote in an email to the Rappahannock News, “REC remains an advocate for broadband bridging the digital divide within our 22- county service area.”

The Western District of Virginia has not yet issued the plaintiffs a court date.

Plaintiff’s attorney: “My clients are not against rural broadband, they are for it and they are for it being done constitutionally.”