Pole Attachment Development (August 19, 2002)
Federal Court Limits Right-of-Way Access Requirement

Date: Aug 19, 2002

In a decision favorable to utilities and property developers, a U.S. District Court in Virginia restricted the ability of a cable and telecommunications provider to use the Pole Attachment Act to gain access to utility and other rights-of-way. In UCA, L.L.C., d/b/a Adelphia Cable Communications v. Lansdowne Community Development, LLC (E.D.Va. 2002), the court ruled that:

(i) The Pole Attachment Act does not require utilities to grant right-of-way access to telecom and cable providers when their easements do not permit such access; and

(ii) Nothing in the Pole Attachment Act prohibits residential development owners from granting exclusive easements to allow a single entity to provide telecommunications or cable services, as long as such easements are valid under state law.

In Adelphia v. Lansdowne, the owner of a residential housing development created a number of easements designed to vest exclusive control of telecommunications rights in a single entity. Stated briefly, one easement granted exclusive control over telecommunications to a non-utility. A second easement allowed two companies, one a utility and one a non-utility, to construct a backbone system for telecom, video, Internet and other services. A third easement was granted to the local electric utility solely to lay power lines to provide electric service.

Utilities are required under the Pole Attachment Act to grant access to cable and telecom companies to the rights-of-way "owned or controlled" by the utility. Citing the Pole Attachment Act, Adelphia sought access to the residences in the development. Applying the statute, the court held that:

(i) Adelphia has no right to access under the first easement because the holder of that easement is not a utility;

(ii) Adelphia has no right to access under the third easement because it is specifically limited to electric service; and

(iii) Adelphia is entitled to access under the utility's portion of the second easement, although the usefulness of such access is limited, since that easement allows only the construction of a backbone system, not the connection of the backbone to any individual home.

The Adelphia v. Lansdowne case affirms that state law must determine whether a utility "owns or controls" an easement. It also clarifies that the Pole Attachment Act, designed to deal with the so-called monopolistic behavior of utilities, does not prohibit landowners from exercising their own "monopoly" control over land rights.

For more information, please contact Tom Magee at (202) 434-4128, or via e-mail at magee@khlaw.com.