TELECOM Digest OnLine - Sorted: Easements (was Alamogordo Telephone Office)

Easements (was Alamogordo Telephone Office)

Neal McLain (nmclain@annsgarden.com)
Wed, 19 Oct 2005 03:10:30 -0400

hancock4@bbs.cpcn.com wrote:

> As I understand real estate law, such easements for utilities are
> part of the general law and not necessarily shown on someone's
> deed. There is nothing to stop the phone, power, or water company
> from digging up your front lawn to run or maintain lines, whether
> you like it or not.

True, provided that the easement document has been recorded. Such
easements may be recorded as part of a plat map, a survey map, or a
separate document.

Individual property deeds often include some catchall phrase like
"subject of easements of record"; however, recorded easements still
apply even if individual deeds don't mention them.

> The law is fuzzier when it comes to newer services such as cable
> and fiber optic.

Franchised cable TV operators have a federal right to utilize
easements recorded "for compatible uses." 47 U.S.C. 541(a)(2). The
term "compatible uses" is usually construed to mean easements
dedicated for electric power and/or telephone facilities.
http://tinyurl.com/84syy

In most states, telcos offering cable TV-like video services must
obtain local CATV franchises; thus, they have the same federal right
to use easements. In Texas, SBC now has a statewide CATV franchise,
which presumably grants it the same right; however, there will
undoubtedly be much litigation before it's settled.

> They [cable TV operators] don't have quite the same "common
> carrier" status as the old line utility service.

Cable TV operators are indeed not common carriers, but that doesn't
mean they don't have a legal right to use recorded easements. See my
previous post on this subject at http://tinyurl.com/7onfs .

> Even established carriers have to handle things differently for new
> services. For example, when Verizon strung fiber through our area
> for its FIOS service, they needed municipal permission ...

i.e., a cable TV franchise.

> ... and they did not provide it universally.

If Verizon obtained a franchise that does not impose the same
requirements on Verizon that it imposes on the incumbent cable TV
franchisee, you can expect some litigation.

SBC's statewide franchise in Texas contains a similar exemption, and
Time Warner has already field suit.

Neal McLain

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