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After property owners brought suit against a California electric utility alleging that power easements on their property were improperly sublicensed for fiber optic telecom uses, a California court of appeal has held that state courts may hear such claims despite the utility’s position that only the California Public Utilities Commission (CPUC) has such jurisdiction.  As has been the case in other instances around the country, the property owners’ underlying objection is that the easements burdening their properties are for specific and limited utility purposes only, and allowing third parties to install fiber optic telecom facilities exceeds the easements’ permissible scope. 

In this case, the appellate court found that the CPUC, while it has exclusive jurisdiction over certain matters within its domain, has not sufficiently regulated utility easements to maintain exclusive jurisdiction over them, and hence a state court may proceed to hear the plaintiffs’ claims.  Accordingly, the court has not yet reached the utility’s defense that such claims are barred by Salvaty v. Falcon Cable Television (165 Cal.App.3d 798 (1985)), which holds that utility easements are unilaterally apportionable by the utility to allow sublicensing for certain new uses without violating the scope of the easement, given that cable television “is part of the natural evolution of communications technology” and does not meaningfully add to the landowner’s burden or loss of use of its property.  Yet to be decided in the current case is whether the electric and power focus of PG&E’s easements can be expanded to include fiber-optic telecom purposes.  According to the Court of Appeal, the PG&E licenses were to Electric Lightwave, Inc.; IP Networks, Inc.; Metromedia Fiber Network Services, Inc.; WilTel Communications; and Broadwing Communications, for various fiber optic telecom uses.  (Koponen v. Pacific Gas & Electric Co., California Court of Appeal No. A116728, July 28, 2008).

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