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    Norfolk Southern and CSX sue Cox Communications over broadband installations

    By Tad Dickens,

    2024-06-04
    https://img.particlenews.com/image.php?url=2N93lX_0tfdQ7Us00

    The companies that own Virginia’s major railways have opened a new legal track as they fight a law that legislators say makes them more accountable for allowing broadband internet into some of the commonwealth’s far-flung locations.

    Norfolk Southern and CSX, through lawsuits filed in the U.S. Eastern District of Virginia’s Richmond division, argue that the state law, which shortens timelines and reduces fees to get broadband past railroad crossings, amounts to a violation of existing federal and state laws. At railroad crossings in New Kent County and Chesapeake, the law allows broadband provider Cox Communications, in particular, to take railroad property without proper compensation while skirting due process, the two suits claim.

    CSX’s suit claims that Cox provided notice earlier this year that it intended “to ignore … safety and permitting processes and instead proceed with an unauthorized installation” and that Cox cited the 2023 Virginia law “which purports to permit broadband service providers to access, cross, and occupy property owned by railroads.”

    Both railroad companies have entered petitions with the State Corporation Commission as well, asking it to stay its part in the process until a federal judge can rule. Cox has yet to respond to the federal suits, but in documents filed in May with the SCC it argued that the commission should reject the railroads’ pleadings. No hearing has been scheduled for either the federal or state filings.

    The lawsuits, filed in April, are similar to a separate case that an industry group, the Association of American Railroads, filed last year . In that action, the industry group sued the SCC commissioner, Jehmal Hudson, whose office would administer the law. Eastern District Judge David Novak dismissed the case, ruling that Norfolk Southern and CSX themselves could make a complaint, but that the association that filed the case did not have standing to do so.

    By the time Novak made his ruling in late April, the railroads were looking to test the law on their own.

    The law in question was created by SB 1029 , which was sponsored by Sen. Bill Stanley, R-Franklin County, and then-Del. (now Sen.) Chris Head, R-Botetourt County. The law reduced approval process time and costs to internet service providers , including the state’s electric cooperatives, that were trying to reach across railroad tracks to accommodate customers.

    Legislators framed the law as a response to what they and co-op representatives said were railroads’ delays to the process, despite a dire need for connectivity that many rural residents experienced during the COVID-19 pandemic. Lawmakers aimed to streamline the approval process to 35 days and to reduce the often five-figure costs that railroads were charging the cooperatives to do the work.

    CSX Transportation, in its federal court filing, argues that its policies and permitting requirements — which require engineering and design reviews and, often, a flagger or inspector on site for broadband installation — are meant to “promote the safety and integrity of CSXT’s railroad operations, its employees, and the surrounding public,” and that the company “has invested millions of dollars on technology and resources” including developing and implementing “a chatbot enhanced with artificial intelligence to further streamline this process.

    “CSXT works cooperatively with utilities, broadband companies, and state and local agencies to timely process crossing applications across CSXT’s approximately 20,000 route mile rail network. CSXT’s requirements are reasonable and customary in the railroad industry.”

    Norfolk Southern, in its filing, claims that it is doing its end of the job faster and more thoroughly than many who file applications to cross their tracks.

    “Aerial wireline crossing applications spend an average of 16 days in Norfolk Southern’s hands, compared to an average of 66 days that the railroad spends waiting for the applicant to provide all required information,” according to the pleadings. “Norfolk Southern takes an average of 18 days to process an underground wireline crossing application, compared to 75 days for applicants to provide the information needed by the railroad.”

    The Norfolk Southern suit argues multiple flaws in the state law that Cox wishes to use.

    “It discriminates against rail carriers by targeting them for an ersatz eminent-domain regime that offers none of the protections Virginia provides to other property owners. It also improperly interferes with exclusive federal regulation of railroads by giving third parties the right to permanently occupy railroad facilities, with no mechanism for accommodating future railroad needs to use the same property. And it unreasonabl[y] burdens rail transportation by adopting a process too rushed and cursory to ensure that broad-band crossings are properly engineered, safely installed, and adequately maintained.”

    Representatives of Norfolk Southern and CSX — whose suits make mostly similar claims — declined to comment, as did representatives of Cox.

    Head, who introduced the bill on the House of Delegates side last year, said that in fact the railroads have pushed back against any legislation for about a decade, while sometimes egregiously overcharging for their part in the process and delaying or even rejecting requests for easements. It became a timing issue after the pandemic, when the federal government supplied about $750 million to fund broadband deployment, but with a December 2026 deadline to spend all the money or lose what isn’t spent.

    The electric cooperatives reached out to Head and Stanley to add the force of law, and since then, the railroads have continued trying to delay, Head said.

    “I don’t think that they think that they are ultimately going to prevail on this, particularly when I have been told that other states are looking at the same legislation as model legislation, and the federal government is looking at this as model legislation, to say this is the way we’re going to regulate this,” Head said in a phone call last week. “This is not just a Virginia problem. This is a nationwide problem with the railroads just not wanting anybody crossing their railroad tracks.

    “I appreciate what railroads have done for us, but there are a lot of times when they operate with a great degree of hubris, and it bothers me. We’ve got to get this thing resolved, and push forward.”

    Head said there is much more at stake than simple entertainment. Households without internet access are falling behind, and even in danger, on multiple levels, he said.

    “If broadband was nothing more than bringing Netflix into the house and you couldn’t get Netflix, no big deal,” he said. “But you know, I work in the senior adult industry. You’ve got telehealth issues, and you’ve got telecommunications issues and … this now increasingly becomes a real necessary thing, to care for people in remote areas.”

    Multiple attempts to reach Stanley for comment were unsuccessful.

    Meanwhile, the Association of American Railroads has appealed Novak’s decision to the Fourth U.S. Circuit Court of Appeals, with documents due from SCC commissioner Hudson’s counsel in July and August.

    While Novak ruled that the industry group could not sue, he left open the possibility that the railroads could pursue some of the case’s arguments. Among them is a contention that federal law on the subject renders the recent state law “void and unenforceable,” and a claim that the law violates the U.S. Constitution’s takings clause by failing to provide the railroads with the possibility of just compensation, based on market value.

    He also dismissed without prejudice claims alleging that the defendants interfered with an existing contract between the railroads and the states, which violated the Virginia Constitution, and that the defendants, through the law, stepped on a longstanding process of contracting with railroads regarding their crossings.

    The post Norfolk Southern and CSX sue Cox Communications over broadband installations appeared first on Cardinal News .

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