Electric co-ops that have been trying to lay broadband fiber have been met with resistance from railroads when they must cross train tracks, company executives and state lawmakers say.
by Tad Dickens
In Southside, a stand of gum trees grows through railroad tracks abandoned decades ago. People on one side of the track have broadband access. On the other side, there is none. That area’s rural electric cooperative is waiting to cross the line and get it done.
In a sparsely populated part of Albemarle County, folks in about 500 homes wait for their internet access to come. Two in-service railroad lines lie between them and the connection that a cooperative there is ready to provide.
In those cases and others, the railroad flaggers who ensure safety at crossing worksites are a big part of the holdup, Virginia legislators and co-op leaders said this week, during the third annual Rural Fiber Expo in Roanoke. Railroad officials won’t dispatch them in a timely fashion, part of what state officials and stakeholders have called “a stalling tactic.” Another holdup: Railroads, particularly Norfolk Southern, often delay for months before approving the co-ops’ applications to pass fiber optic cable across railways, expo participants said.
The Virginia General Assembly passed a bill this year — which both the Senate and House of Delegates supported unanimously — 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. Gov. Glenn Youngkin signed the bill into law in March, and it went into effect in July.
In June, however, an industry trade group that represents Norfolk Southern and CSX, among others, filed a federal suit in Alexandria. According to the suit, the Association of American Railroads wants a judge to declare that federal statutes supersede Virginia’s new law and that the commonwealth is taking their property without just compensation, rendering the law unenforceable.
No federal judge has ordered an injunction, so the law is still in effect, said Sen. Bill Stanley, R-Franklin County, who was the bill’s lead patron on the Senate side. That means stalling on approvals is now illegal. But the flaggers are still an issue. Norfolk Southern, the subject of many fiber optic-crossing applications, employs a Texas-based company, Railpros, for flagging, and that company is difficult at best to reach, said John Lee, CEO of Mecklenburg Electric Cooperative, and Gary Wood, CEO of Central Virginia Electric Cooperative’s Firefly Broadband.
“What strikes me is how incredibly logical and reasonable the legislation is,” Lee said on Thursday, during a break in the expo sessions. “All we ask is that you show us what the costs are, and we will gladly pay that and do so in a timely manner, and help us get this done.
“I mean, I’ve got a whole neighborhood on the other side of the track now, waiting on broadband … and we’ve been going at it since November of last year. It’s unbelievable. And look, if I went in there tomorrow and did it, they wouldn’t even know I did it. We’ve already got lines across there. We’re talking about putting another line on two poles that we already have and lines that already cross another line. And by the way, this one is abandoned — hasn’t been a train on this track since 1902.”
Voice messages left Friday at Norfolk Southern, Railpros and the Association of American Railroads were not returned.
Stanley told a group of co-op members, stakeholders and industry employees gathered at Hotel Roanoke on Thursday that legislators made multiple compromises with railroad executives. Among them was one that allowed them to continue using their outsourced flaggers, for safety purposes. The waiting continues for the electricity and cable providers trying to reach out to rural residents.
He said he remembered his early years in the General Assembly, when Norfolk Southern was still based in Roanoke and “pushed us around.” The business, a driving force in Roanoke’s development, left in 2015 for Atlanta, yet is still not used to the commonwealth’s lawmakers standing up to its executives, said Stanley and Del. Chris Head, R-Botetourt County, who carried the House version of the bill.
“And it’s not like the providers, the people that are putting it in the ground or running them over top of their railroad tracks, aren’t willing to settle,” Stanley said. “It’s that the railroads in my opinion have become such an obnoxious bully, so used to getting their way, they know no other way to handle these matters. They’re so big and they have such a cadre of lawyers that they just throw money at it, and compromise for them would just be a sign of weakness to others, so they’re just going to play out the string, win or lose, and that’s unfortunate.
“The real losers are the people that don’t get the service that they need through fiber optic cable. But they don’t even care about them, and it’s pretty evident.”
A representative from the Rural Fiber Expo’s host — the Virginia, Maryland and Delaware Association of Broadband Cooperatives — has reached out to the railroads since the lawsuit, requesting a meeting to “see if we can work this thing out,” Lee said. “And they don’t even give a response. We’ve emailed, we’ve called, we’ve written letters. No response.”
Minus a settlement, a lengthy court process may lie ahead, and the commonwealth has about three years to spend $1 billion in grants from the Virginia Telecommunications Initiative, according to a letter that supporters sent on March 9 to Youngkin. Those signing it included Virginia’s Broadband Cooperatives, Verizon and Microsoft. The latter has a data center in Mecklenburg County’s Boydton, where Lee said his co-op secured broadband access that allowed employees to quit traveling back and forth between there and Raleigh, North Carolina.
As Lee and Stanley discussed the issues with a reporter during an expo break, Stanley said he had just come up with an idea.
“Remove the flaggers’ position,” he said. “Once you get in trouble, your parents start taking away your stuff, your privileges. … Let them know what’s coming, because you know what? The litigation will still be ongoing. We need to build these out. We have a timetable that needs to be hit. And we suffer every day that they act like an infant.”
Lee said that cooperatives’ employees can get the job done just as well.
“So we build hundreds of miles of distribution line all across the state of Virginia,” he said. “We know how to cross highways. We have our own flaggers. All our men are trained to do exactly the same thing these Railpro folks are supposed to do. So we do crossings of highways and roads almost every day. … We have all the resources, and nobody does it safer than the electric utilities.”
The General Assembly won’t meet again until early January. Meanwhile, getting flaggers to sites may still cause delays. Wood, the Firefly Broadband CEO, said he will do his best to remind Railpros of his area’s needs.
“We’ve been very fortunate to work through supply chain issues,” Wood said. “We’ve worked through labor shortage issues. But this one is one that is out of our control, and it was really critical that we get the bill passed so we get some control, some guardrails up just so we can say let’s work within reasonable timelines and have reasonable cost.