Re: To Bury or Not to Bury [Telecom]

In my neighborhood the utility easement is at the back > property line, which the telco used a number of years ago > to place buried cable replacing the existing aerial > plant. > > The cable company remains on the pole line, shared with > the power company. Is the cable company permitted to use > the easement?

Yes, under 47 U.S.C. 541(a)(2).

I wrote about this issue in August 2005 in a thread "Re: Broadband Competition Must Surely be Working." Following is a reprint of the relevant section:

The right of a franchised CATV operator to occupy land stems from three sources:

FRANCHISE AGREEMENT. A franchise agreement grants a CATV company the right to occupy (install and maintain its facilities on) right-of-way owned by the (one or more) municipal and/or county government(s) that constitute the LFA (local franchising authority). But a franchise does not grant the right to occupy:

- Other government property (parks, recreation facilities, schools, government buildings, etc.) unless specifically so stated in the franchise agreement.

- Property owned by any municipal or county government that is not a constituent government of the LFA.

- Property owned by any separate governmental entity (federal or state government; school district; public college or university, etc.).

- Railroad right-of-way.

- Private property.

PRE-EXISTING RECORDED UTILITY EASEMENT. Franchised CATV operators have a federal right to occupy existing recorded utility easements "which have been dedicated for compatible uses." The term "compatible uses" is usually construed to mean easements dedicated for electric power and/or telephone facilities.

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Many states also have similar provisions; for example, Texas Utilities Code 181.101 - 181.104.
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NEGOTIATED EASEMENT or PERMIT. If a CATV company wishes to occupy any property not covered by a franchise agreement or by an existing recorded utility easement, it must negotiate a separate easement or permit with the property owner.

My original post is at

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Neal McLain

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Neal McLain
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