Using Electric Utility Easements for Broadband

With tens of billions of dollars being made available for rural broadband infrastructure projects, electric utilities – including rural electric cooperatives, publicly owned power companies, and investor-owned utilities – stand ready to play a crucial role in bringing broadband to unserved and underserved areas of the US Easement issues are a significant concern for many of them. Utilities have easement agreements with private property owners that allow the utility to install poles and run wires across a strip of property. A single utility may have hundreds or even thousands of such agreements adopted at various times over a utility’s long history. While these easements were secured to transmit electric power, the addition of broadband infrastructure for the purpose of providing commercial communications services – even just an additional fiber optic cable –may potentially exceed the scope of the easement, leading to potential claims by landowners for damages based in trespass, unjust enrichment, or other legal theories. Without protective legislation, an electric utility that seeks to deploy fiber infrastructure for commercial broadband within its existing electric easements will need to weigh the benefits of the deployment against the potential risk of legal action, factoring in the significant federal and state funding available to bring fiber-based broadband to unserved and underserved areas of the country.