Pole Attachment Development (October 27, 2003)
Easements Class Action Lawsuit

Date: Oct 28, 2003

A recent case highlights the limitations of electric utility easements over private property and the potential liability utilities face when relying on those easements to allow telecom company access to their poles.

In Fisher v. Virginia Elec. and Power Co., 2003 F.R.D. 201 (E.D. Va. Aug. 13, 2003), a U.S. District Court in Richmond allowed landowner plaintiffs throughout Virginia and North Carolina to proceed with a class action lawsuit against Virginia Electric and Power Company ("VEPCO") and its (now bankrupt) affiliate Dominion Telecom, Inc. Plaintiffs in that case allege that the easements at issue, which are among the thousands obtained by VEPCO from private landowners over the past 75 years, do not allow VEPCO to sanction fiber optic attachments by Dominion Telecom. In prosecuting their claim, the plaintiffs showed the court nine varieties of easements, and pointed out that many of them specifically granted the easement only "for the purpose of transmitting electric power."

The VEPCO case appears to be the first time a federal court has granted class certification in a fiber optic easement case, and it bodes poorly for electric utilities in similar circumstances. With the strength in numbers afforded by the court's class certification, the VEPCO plaintiffs now appear to possess a financial incentive strong enough to prosecute this suit to the maximum extent possible.

If you have any questions as this case develops, feel free to contact Tom Magee at (202) 434-4128 or magee@khlaw.com.