Cable operators seeking access to existing utility easements on private property recently received some good news. On February 28, 2020, the U.S. Court of Appeals for the 7th Circuit ruled that Section 621 of the federal Communications Act, 47 U.S.C. § 541, allows franchised cable operators to use existing electric utility easements without obtaining a separate easement from the owner of the underlying land.

The decision in West v. Louisville Gas & Electric Co. is noteworthy because it reaffirms a common sense application of the "access to compatible easements" provision of the statute and declined to adopt the reasoning of four other circuits that have narrowly interpreted this provision.

Section 621(a)(2) of the Act provides that a cable franchise authorizes the construction of a cable system, including "through easements . . . which have been dedicated for compatible uses." The cable system in West attached its fiber to electric transmission towers installed on West's property within existing easements that authorized the utility's lines, poles and towers for the transmission of electricity for "power, telephone and/or other purposes." West argued that the cable company needed its own easement because the easement only extended to the electric utility and its successors and had not been "dedicated for compatible uses" under Section 621.

The court rejected the landowner's argument that under Section 621 the easement needed to be and was not "dedicated to the public" in the manner of public roads. Instead, the court found that Indiana's law of easements controlled interpretation of the easement, and that the law "treats easements as permitting new uses compatible with the original grant." The court recognized that "most states permit the holder of an easement to allow third parties to use rights available under the easement."

The case is important because the landowner's arguments rested on opinions of four other federal appellate courts that rejected cable operators' efforts to gain access to the inside spaces of apartment buildings and other multi-dwelling units under Section 621's "compatible use" provision. The 3rd, 4th, 8th, and 9th Circuits have all reasoned to some extent that Section 621 only authorizes cable operators to use easements that have been "dedicated to the public," despite the fact that the term "public" is only used in the statute to describe "rights-of-way," not easements "dedicated to compatible uses." 

With its decision, the 7th Circuit joins a number of courts in other jurisdictions that have interpreted easements "dedicated to compatible uses" under Section 621 to mean simply "set aside" or "designated" as commonly understood. This approach to Section 621 would allow cable systems to follow existing utility corridors, where the underlying property owner might have already been fully compensated for the easement and the installation of utility facilities on the property.

This article was originally featured as a communications advisory on on March 11, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.