                                 CODE OF VIRGINIA

UTILITY EASEMENTS; EXPANSION OF BROADBAND (§ 55.1-306.1)

A. As used in this section, unless the context otherwise requires:
			&#8220;Claim&#8221; means, in reference to litigation brought against an
indemnified party, any demand, claim, cause or right of action, judgment,
settlement, payment, provision of a consent decree or a consent decree, damages,
attorneys fees, costs, expenses, and any other losses of any kind whatsoever
associated with litigation.
			&#8220;Communications provider&#8221; means a broadband or other
communications service provider, including a public utility as defined in &#xA7;
56-265.1, a cable operator as defined in &#xA7; 15.2-2108.1:1, a local exchange
carrier, competitive or incumbent, or a subsidiary or affiliate of any such
entity.
			&#8220;Easement&#8221; means an existing or future occupied electric
distribution or communications easement with right of apportionment, including a
prescriptive easement, except that &#8220;easement&#8221; does not include (i)
easements that contain electric substations or other installations or facilities
of a nonlinear character and (ii) electric transmission easements.
			&#8220;Enterprise data center operations&#8221; has the same meaning as
provided in &#xA7; 58.1-422.2.
			&#8220;Evidence of creditworthiness&#8221; means commercially reasonable
assurance, in a form satisfactory to the incumbent utility, that the
communications provider will be able to meet its obligations to indemnify as
required by this section. Demonstrating that the communications provider has met
the eligibility requirements for the Virginia Telecommunications Initiative
(VATI), without regard to receipt of a VATI grant, pursuant to regulations or
guidelines adopted by the Department of Housing and Community Development, shall
be presumptive evidence of creditworthiness.
			&#8220;Incumbent utility&#8221; means the entity that is the owner of the
easement.
			&#8220;Indemnified parties&#8221; means an incumbent utility, or any
subsidiary or affiliate of any such entity, and the employees, attorneys,
officers, agents, directors, representatives, or contractors of any such entity.
			&#8220;Occupancy license agreement&#8221; means an uncompensated agreement
between an incumbent utility and a communications provider, for use when the
communications provider wishes to occupy an easement underground, that includes
evidence of creditworthiness, nondiscriminatory provisions based on safety,
reliability, and generally applicable engineering principles.
			&#8220;Prescriptive easement&#8221; means an easement in favor of an
incumbent utility or communications provider that is deemed to exist, without
any requirement of adverse possession, claim of right, or exclusivity, when
physical evidence, records of the incumbent utility, public records, or other
evidence indicates that it has existed on the servient estate for a continuous
period of 20 years or more, without intervening litigation during such period by
any party with a title interest seeking the removal of utility facilities or
reformation of the easement. The size of such easement shall be deemed to be the
greater of the actual occupancy of the easement in the incumbent utility&#8217;s
usual course of business or 7.5 feet on each side of the installed
facilities&#8217; center-line.
			&#8220;Public utility&#8221; has the same meaning as provided in &#xA7;
56-265.1.
			&#8220;Sensitive site&#8221; means an underlying servient estate that is
occupied by a railroad or an owner or tenant having operations related to
national defense, national security, or law-enforcement purposes.

B. It is the policy of the Commonwealth that:

   1. Easements for the location and use of electric and communications
   facilities may be used to provide or expand broadband or other communications
   services;

   2. The use of easements, appurtenant or gross, to provide or expand broadband
   or other communications services is in the public interest;

   3. The installation, replacement, or use of public utility conduit, including
   the costs of installation, replacement, or use of conduit of a sufficient size
   to accommodate the installation of infrastructure to provide or expand
   broadband or other communications services, is in the public interest.

   4. The use of easements, appurtenant or gross, to provide or expand broadband
   or other communications services (i) does not constitute a change in the
   physical use of the easement, (ii) does not interfere with, impair, or take
   any vested or other rights of the owner or occupant of the servient estate,
   (iii) does not place any additional burden on the servient estate other than a
   de minimis burden, if any; and (iv) has value to the owner or occupant of the
   servient estate greater than any de minimis impact;

   5. The installation and operation of broadband or other communications
   services within easements, appurtenant or gross, are merely changes in the
   manner, purpose, or degree of the granted use as appropriate to accommodate a
   new technology; and

   6. The statements in this subsection are intended to provide guidance to
   courts, agencies, and political subdivisions of the Commonwealth. Nothing in
   this section shall be deemed to make the use of an easement for broadband or
   other communications services, whether appurtenant, in gross, common,
   exclusive, or nonexclusive, a public use for the purposes of &#xA7; 1-219.1,
   or other applicable law.

C. The installation and operation of broadband or other communications services
by an incumbent utility for that utility&#8217;s own internal use, adjunctive to
the operation of the electric system, or for the purposes of electric safety,
reliability, energy management, and electric grid modernization, are permitted
uses within the scope of every easement.

D. Absent any express prohibition on the installation and operation of broadband
or other communications services in an easement that is contained in a deed or
other instrument by which the easement was granted, the installation and
operation of broadband or other communications services within any easement
shall be deemed, as a matter of law, to be a permitted use within the scope of
every easement for the location and use of electric and communications
facilities.

E. Subject to compliance with any express prohibitions in a written easement,
any incumbent utility or communications provider may use an easement to install,
construct, provide, maintain, modify, lease, operate, repair, replace, or remove
its communications equipment, system, or facilities, and provide communications
services through the same, without such incumbent utility or communications
provider paying additional compensation to the owner or occupant of the servient
estate or to the incumbent utility, provided that no additional utility poles
are installed.

F. Nothing in this section shall diminish a landowner&#8217;s right to contest,
in a court of competent jurisdiction, the nature or existence of a prescriptive
easement that has been continuously occupied for less than 20 years.

G. Any incumbent utility or communications provider may use a prescriptive
easement to install, construct, provide, maintain, modify, lease, operate,
repair, replace, or remove its communications equipment, system, or facilities,
and provide communications services through the same, without such incumbent
utility or communications provider paying additional compensation to the owner
or occupant of the servient estate or to the incumbent utility, provided that no
additional utility poles are installed.

H. Any incumbent utility may grant or apportion to any communications provider
rights to install, construct, provide, maintain, modify, lease, operate, repair,
replace, or remove its communications equipment, system, or facilities, and to
provide communications services through the incumbent utility&#8217;s
prescriptive easement, including the right to enter upon such easement without
approval of the owner or occupant of the servient estate, such grant and use
being in the public interest and within the scope of the property interests
acquired by the incumbent utility when the prescriptive easement was
established.

I. Notwithstanding any other provision of law, in any action for trespass, or
any claim sounding in trespass or reasonably related thereto, whatever the
theory of recovery, relating to real property that is brought after July 1,
2020, against an incumbent utility or a communications provider, in relation to
the existence, installation, construction, maintenance, modification, operation,
repair, replacement, or removal of any poles, wires, conduit, or other
communications infrastructure, including fiber optic or coaxial cabling or the
existence of any easement, appurtenant or gross, including a prescriptive
easement, if proven, damages recoverable by any claimant bringing such claim
shall be limited to actual damages only, and no consequential, special, or
punitive damages shall be awarded. Damages shall be based on any reduction in
the value of the land as a result of the existence, installation, construction,
maintenance, modification, operation, repair, replacement, or removal of
communications facilities, as such tract existed at the time that any alleged
trespass began giving rise to such claim under this section. The court shall
also consider any positive value that access to broadband or other
communications services may add to the property&#8217;s value when calculating
damages. Injunctive relief to require the removal or to enjoin the operation of
other communications facilities or infrastructure shall not be available when
such line or facilities are placed within an existing electric utility or
communications easement, appurtenant or gross, but damages as set forth in this
subsection shall be the exclusive remedy.

J. Nothing in this section shall be deemed to limit any liability for personal
injury or damage to tangible personal property of the landowner or occupant
caused directly by the activities of the incumbent utility or communications
provider while on or adjacent to the landowner&#8217;s or occupant&#8217;s real
property.

K. Any communications provider making use of an easement pursuant to this
section shall:

   1. Enter into an agreement with the incumbent utility authorizing it to use an
   easement;

   2. Adhere to such restrictions as the incumbent utility may place on the
   communications provider, provided that such restrictions are reasonably
   related to safety, reliability, or generally applicable engineering principles
   and are applied on a nondiscriminatory basis;

   3. For underground facilities, enter into an occupancy license agreement with
   the incumbent utility;

   4. Agree in writing to indemnify, defend, and hold harmless the indemnified
   parties as against any third party for any claim, including claims of
   trespass, arising out of its entry onto, use of, or occupancy of such easement
   and provide evidence of creditworthiness, as the incumbent utility may
   prescribe, provided that the communications provider is given timely written
   notice and full cooperation of the indemnified parties in defending or
   settling any claim, including access to records and personnel to establish the
   existence of an easement and its history of use by the incumbent utility, and
   further provided that every communications provider occupying an easement that
   is the subject of a claim shall be jointly and severally liable to the
   indemnified parties, with an obligation of equal contribution, for any claim
   arising out of entry onto, use of, or occupancy of an easement for
   communications purposes; and

   5. For underground facilities, abide by the provisions of the Underground
   Utility Damage Prevention Act (&#xA7; 56-265.14 et seq.).

L. A communications provider, making use of an easement pursuant to this
section, shall not:

   1. Locate a telecommunications tower in such easement; or

   2. Install any new underground facilities except pursuant to an occupancy
   license agreement (i) in an incumbent utility&#8217;s conduit pursuant to a
   joint use agreement; (ii) where incumbent utility facilities are permitted
   underground, using a clean-cutting direct burial technique beneath the surface
   soil no more than 24 inches in depth and six inches in width; or (iii) riser
   or drop lines or equipment connection lines, followed in all cases by
   reasonable restoration of the surface to substantially its prior condition,
   provided that the landowner shall not, absent an agreement to the contrary, be
   responsible for relocating or reimbursing the incumbent utility or a
   communications provider for the cost of relocating any new underground
   communications facilities installed pursuant to clause (ii) of this
   subdivision, which relocation and associated costs shall be addressed in the
   occupancy license agreement. This limitation on reimbursement or payment of
   relocation costs incurred as a result of development or redevelopment by the
   landowner shall not apply to any communications facilities in the public
   rights of way adjacent to or overlying the real property in question.

M. As against a communications provider, no incumbent utility shall:

   1. Solely by virtue of the provisions of this section, require any additional
   compensation for use of an easement, unless such compensation is required
   expressly in a written easement or other agreement;

   2. Unreasonably refuse to grant an occupancy license agreement to any
   communications provider;

   3. Include in an occupancy license agreement requirements for title reports,
   surveys, or engineering drawings; or

   4. Use an occupancy license agreement for dilatory purposes or to create a
   barrier to the deployment of broadband or other communications services.

N. Nothing in this section shall apply to those easements located on sensitive
sites or housing enterprise data center operations.

O. Notwithstanding any provision of this section, a public utility or an
incumbent utility may assess fees and charges and impose reasonable conditions
on the use of its poles, conduits, facilities, and infrastructure, which, as
regarding attachments to utility poles, shall be subject to the provisions of 47
U.S.C. &#xA7; 224 for investor-owned utilities and to &#xA7; 56-466.1 for
electric cooperatives. The statutes of repose, limitation, and notice-of-claim
requirements contained in subsections R, S, and T shall not apply as being
between a communications provider and an incumbent utility.

P. Nothing in this section shall be construed to inhibit, diminish, or modify
the application of the provisions of Chapter 4 (&#xA7; 56-76 et seq.) of Title
56 or &#xA7; 56-231.34:1 or 56-231.50:1, as applicable.

Q. The provisions of this section shall be liberally construed. An agreement to
indemnify pursuant to this section shall not be void as against public policy.

R. Notwithstanding any other provision of law, every action against an incumbent
utility, public utility, or communications provider, or a subsidiary or
affiliate of any such entity, in relation to the existence, installation,
construction, maintenance, modification, operation, repair, replacement, or
removal of any poles, wires, or other communications infrastructure, including
fiber optic or coaxial cabling, whatever the theory of recovery, shall be
brought within 12 months after the cause of action accrues. The cause of action
shall be deemed to accrue when overhead broadband or other communications
infrastructure is installed or when such underground infrastructure is
discovered.

S. Notwithstanding any other provision of law, every action against an incumbent
utility, public utility, or a communications provider, or a subsidiary or
affiliate of any such entity, after actual notice has been given to the
landowner or occupant in relation to the existence, installation, construction,
maintenance, modification, operation, repair, replacement, or removal of any
poles, wires, or other communications infrastructure, including fiber optic or
coaxial cabling, overhead or underground, whatever the theory of recovery, shall
be brought within six months after the cause of action accrues. The cause of
action shall be deemed to accrue when actual notice, including notification of
such six-month limitation period, is given to the landowner or occupant by first
class mail to the last known mailing address of the landowner or occupant in the
incumbent utility&#8217;s records, or other actual notice.

T. Notwithstanding any other provision of law, every claim cognizable against
any incumbent utility, public utility, or communications provider for trespass,
or any claim sounding in trespass or reasonably related thereto, whatever the
theory of recovery, in relation to the overhead or underground existence,
installation, construction, maintenance, modification, operation, repair,
replacement, or removal of any poles, wires, or other communications
infrastructure, including fiber optic or coaxial cabling, shall be forever
barred unless the claimant or his agent, attorney, or representative has filed a
written statement addressed to the incumbent utility, and, if known, to the
communications provider, of the nature of the claim, which includes the time and
place at which the claim is alleged to have transpired, within 12 months after
such cause of action accrued. The cause of action shall be deemed to accrue when
physical overhead broadband or other communications infrastructure is installed,
or when the existence of such underground infrastructure is discovered. However,
if the claimant was under a disability at the time the cause of action accrued,
the tolling provisions of &#xA7; 8.01-229 shall apply.

HISTORY: 2020, cc. 1131, 1132.