Railroad Industry Drops Challenge to Virginia Crossing Law
The state's high court already said private, for-profit ISPs couldn't invoke the law.
WASHINGTON, August 27, 2025 – After successfully curtailing a Virginia law aimed at making it easier for broadband providers to cross rail lines, the railroad industry has dropped its pending effort to ax the law altogether.
The American Association of Railroads noted in a filing earlier this month that the Virginia Supreme Court found the law “unconstitutional under state law in a substantial number of its applications” in May, and that the Fourth Circuit affirmed AAR could challenge the law on behalf of its members in July.
“Accordingly, AAR hereby dismisses this action without prejudice,” the group wrote, meaning it would retain the right to bring the suit again in the future. On Aug. 18, Eastern District of Virginia Judge David Novak closed the case.
The law puts timelines on railroad responses to crossing requests and caps the fees railroads can charge to ISPs looking to cross their tracks with fiber. Railroads also can’t charge a fee for crossings that follow public roads under the law.
ISPs have alleged railroad right-of-way negotiations can hold up deployment projects, while railroads have said the Virginia law's fees are too low and the expedited timelines could be a safety hazard.
After the Virginia Supreme Court ruling, though, the law can’t be invoked by private, for-profit ISPs, limiting the scenarios where railroads would have to comply. Judges said that would amount to the companies exercising eminent domain and seizing private property for their own private use, something prohibited by Virginia’s constitution.
Railroad company Norfolk Southern had sued in that case to prevent Cox Communications from crossing its rail lines without paying fees, and the Virginia Supreme Court’s ruling sided with the railroad.
AAR had separately challenged the law itself, arguing it was preempted by federal railroad regulations and violated the U.S. Constitution’s takings clause by preventing railroads from collecting fees from ISPs crossing their property.
Novak had originally ruled AAR could not do so, saying a railroad that encountered the issue would itself have to sue. After the group appealed, the Fourth Circuit reversed Novak’s ruling in July and said that AAR’s case could proceed.
But blocking for-profit ISPs from using the law was evidently enough for the group.
AAR didn't comment.
Data compiled by the Institute for Local Self-Reliance shows dozens of communities in Virginia have access to government-owned broadband networks, a category of ISP the decision appeared to exempt.
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