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Internet and railroad companies battle over track crossings

Buford and Larkspur rail crossing in Bon Air
Shaban Athuman
VPM News
Buford and Larkspur rail crossing in Bon Air is seen on Thursday, July 6, 2023 in Chesterfield, Virginia.

A lawsuit challenges a new state law giving ISPs more power over crossings.

Virginia Sen. Mark Warner (D) announced a $1.5 billion federal investment in broadband connection projects in Virginia on June 30 — but a lawsuit filed by railroad companies could hamper the efforts.

The money will go to private broadband providers to help cover the costs of constructing broadband infrastructure, which are considerable when reaching people in remote rural areas.

Meanwhile, broadband providers say a lawsuit brought in federal court by the Association of American Railroads against a new state law presents a challenge.

A legal challenge

The suit, filed in Alexandria, challenges a law passed by the General Assembly this year. The law, sponsored by state Sen. Bill Stanley (R–Franklin), seeks to limit the timeframe and expense for broadband companies to cross wires over or under railroad tracks.

“The railroad companies were holding up any approval of crossing ... and demanding exorbitant fees for what was a 15-minute, 20-minute procedure,” Stanley told VPM News.

Gary Wood, CEO of Central Virginia Electric Cooperative and the affiliated Firefly Fiber Broadband, said some crossings were held up for six months to a year.

“We've got to believe that there's a faster way to turn those around,” he said in an interview.

Stanley’s law limits project reviews to 35 days and requires broadband providers to pay a $2,000 fee — plus up to $5,000 to cover railroad costs. Railroads can petition the State Corporation Commission for additional costs if needed.

Some crossings, like underground wires, are more expensive to evaluate and install.

According to AAR, the new law does two important things: It removes the railroad’s constitutional right to “just compensation” for use of private property (the rail), and it “hobbles” a railroad company's ability to maintain a safe operating environment.

The organization argued in legal briefings that no railroad crossing project is alike, and each requires a structured planning, site evaluation and construction process.

“This new statute, however, skips over all that and empowers a broadband service provider to dictate to railroads when and how the provider will cross railroad land, and at what minimal cost,” the lawsuit states.

AAR’s lawyers argue the state took the authority of railroads and regulators, and then handed that power to broadband companies to use as they see fit.

They also referenced a different broadband bill vetoed by Gov. Glenn Youngkin this year. SB 1051, sponsored by state Sen. Jeremy McPike (D-Manassas), would have allowed broadband companies to leave maintenance vehicles on a person’s private property for up to 72 hours without being towed. Youngkin argued that “violates the fundamental rights of property owners.”

“As a cornerstone of our society, property rights must not be eroded for convenience or expediency,” Youngkin’s veto continued.

Stanley said he worked hard to meet the demands of railroads while drafting the bill, which passed the House of Delegates and Senate unanimously. He doesn’t believe there are any constitutional issues but said he’s ready to make changes if needed.

“If the court finds there's a deficiency, then we're gonna go right back into the General Assembly and we'll fix it,” Stanley said. ”Otherwise, I think the lawsuit is unnecessary, unwise and really not needed. We need to find solutions, not move into each corner and fight it out.”

No judge has issued an injunction related to the lawsuit, so Stanley’s law is still in full force.

Funding — with a time limit

The $1.5 billion of federal money, from the Broadband Equity Access and Deployment program, will be distributed by the Virginia Telecommunication Initiative beginning next year. Virginia still has about 200,000 residents — about 2.5% of the state’s population — without access to high-speed internet, according to the Virginia, Maryland and Delaware Association of Broadband Cooperatives.

In a June 13 presentation, Virginia Broadband Director Tamarah Holmes said VATI has distributed over $935 million in state and federal funds since 2017, connecting 388,000 locations. She added that with the anticipated BEAD funds (which weren’t final at that time) Virginia could expect to be the first “large state nationally to obligate funds to provide broadband access to all unserved locations.”

Those grant dollars come with a time limit — and pressure from politicians to connect all Virginians to the internet they need to work remotely, go to telemedicine appointments, keep up with family and more.

Casey Logan, chief operating officer at Empower Broadband and president of the VMDABC, said time is of the essence when it comes to broadband projects.

“Right now, [Empower has] up to three years to finish our VATI builds from the time we started,” Logan said.

And railroad crossings, if they each take more than a month to complete, could pose a threat to that timeline.

“In our VATI project that we were awarded in 2022, we’re gonna have approximately 70 railroad crossings,” Logan said.

Logan said he’s hopeful the law will remain untouched, and that Empower and other broadband providers will be able to move forward quickly.

Corrected: July 7, 2023 at 10:00 AM EDT
July 7, 10 a.m.: An earlier version of this article misidentified Gary Wood, CEO of Firefly Fiber Broadband.
Patrick Larsen is VPM News' environment and energy reporter, and fill-in host.