Virginia Supreme Court Strikes Down 2023 Broadband Expansion Statute
Norfolk Southern Rwy. Co. v. SCC, Record No. 240869 (Va. May 22, 2025)
In 2023, Virginia enacted Code § 56-16.3 to promote broadband expansion by allowing broadband service providers to install fiber optic cables across railroad property. The statute required the service provider to pay licensing fees but capped those fees.
Cox Communications applied to install underground fiber optic cables beneath Norfolk Southern’s railroad tracks in New Kent County. Norfolk Southern initially indicated it didn’t object to the crossings themselves but wanted to negotiate licensing fees above the statutory caps. When Cox refused and insisted on proceeding under the statute’s fee limitations, Norfolk Southern filed a petition with the SCC. It argued that Code § 56-16.3 violated Virginia’s Constitution by permitting private takings, and that it eliminated the constitutional requirement that condemnors prove public use. The SCC rejected Norfolk Southern’s arguments, so Norfolk Southern appealed to the Supreme Court.
The Supreme Court reversed the SCC decision, holding that the challenged application of Code § 56-16.3 violated Article I, Section 11 of the Constitution of Virginia. Virginia’s Constitution provides that property can only be taken for genuine “public use;” the condemnor bears the burden of proving public use; and private gain, economic development, or private benefit alone cannot justify takings. Here, the statute never mentions “public use” and doesn’t require broadband providers to demonstrate that their taking serves a public purpose, the statute does not require the condemnor to prove a public use, and Cox is a private, for-profit company expanding it network for financial gain, not a public entity. The Court emphasized that a “public benefit,”—helping consumers get broadband—is not the same as “public use”—actual possession and control by the public or public agencies.