Virginia Supreme Court hears challenge to law allowing broadband crossings on railroad property

Norfolk Southern Railway Company asked the Supreme Court of Virginia during oral argument to strike down a state law that allows broadband providers to place cable across railroad property, saying the statute conflicts with Virginia's public-use statute and the Constitution's takings clause.

Tobias L. Eaton, counsel for Norfolk Southern, told the court that "The Corporation Commission's decision allowing Cox's crossings on Norfolk Southern property cannot stand for two reasons. First, there is no public use here." Eaton argued the public-use statute (cited in the argument as "section 12.19.1") lists six exclusive categories of public use and that the broadband-crossing statute (referred to in argument as "section 56.16.3") cannot be read to override that list by implication.

Eaton said the statute also improperly shifts the burden of proof to railroads to petition the State Corporation Commission for relief and leaves no procedure to adjudicate whether a particular crossing is a public use. "By itself, that is improper burden shifting," he said, arguing that the commission declined to decide public-use questions because the statutory relief provisions did not include public use.

Erica L. Maley, representing the Commonwealth, countered that expanding broadband access qualifies as a public use akin to long-recognized infrastructure projects such as railroads and electrification. "Expanding public access to broadband Internet is a public use within the meaning of the takings clause," Maley told the justices, saying the State Corporation Commission (SCC) retains control to reject crossings, require location changes and address impacts to rail operations.

Maley acknowledged an "as-applied" challenge could succeed if a specific crossing primarily benefited a private business or involved uses beyond construction of broadband infrastructure, but argued the SCC properly found on the facts before it that the crossings at issue served a recognized public interest and satisfied the court's multi-factor public-use test.

Joshua A. Weiss, counsel for Cox, emphasized the specific facts of the crossings at issue. "For these particular crossings, Cox has entered into a public-private partnership with New Kent County to bring broadband Internet to over 3,000 rural residents with limited or no access to broadband Internet service," Weiss said, adding the project involves nearly $35,000,000 in investment split almost evenly between Cox and New Kent County and would build out roughly 566 miles of fiber optic cable. Weiss said each proposed crossing in the record involved a single track in a rural area and typically a 4.5-inch horizontal bore.

Justices questioned whether broadly labeling broadband projects as a "public use" would re-open the sort of concerns that prompted post-Kelo statutory and constitutional changes. Justice Kelsey repeatedly pressed counsel on whether the legislature's choice to use the phrase "public interest" rather than "public use" in some statutes suggested a deliberate difference in meaning and whether that distinction should be dispositive.

Norfolk Southern argued the text and drafting history demonstrate the General Assembly knows how to expand the public-use list when it intends to do so and that the broadband statute's different language should not be construed as eliminating the public-use statute's limits. The Commonwealth responded that the statutes can be harmonized and that other provisions and the SCC's oversight create adequate safeguards against private misuse.

Counsel and the court also discussed practical and limiting principles: whether small, de minimis crossings could serve as precedents for broader private takings; whether the statute constitutes condemnation or merely a licensing regime with presumptive fee caps; and how compensation and diminution in property value would be handled if a taking were found.

The justices did not issue a decision at argument. The high court's eventual ruling will determine how Virginia balances state-supported broadband expansion, private infrastructure investment and longstanding limits on eminent-domain takings.