Virginia Looking to Preserve Railroad Crossing Law After Setback in State Court

WASHINGTON, May 27, 2025 – Virginia’s highest state court ruled last week that a state law designed to ease broadband deployment over railroads effectively couldn’t be used by private companies. The state is arguing the setback should not lead a federal appeals court to strike down the law altogether.

The Supreme Court of Virginia handed down its ruling Thursday, writing that Cox Communications couldn’t use the law to force Norfolk Southern, a railroad company, to allow it to lay fiber under certain tracks at a given rate. The court said that the arrangement would amount to Cox exercising eminent domain and seizing private property for its own private use, something prohibited by Virginia’s constitution.

“Cox is a private, for-profit broadband service provider. It is not a government entity, public service corporation, or public service company,” the court wrote. “Therefore, Cox cannot exercise the power of eminent domain for a ‘public use,’” under Virginia law.

The law is also being challenged in the Fourth Circuit Court of Appeals by the American Association of Railroads, which alleged that the law violated the U.S. Constitution by preventing railroads from charging fees for certain crossings. Virginia countered that AAR couldn’t itself bring the suit because the national organization hadn’t been directly harmed, arguing an individual company would have to sue if such an issue arose with an ISP.

The state argued Friday that the state supreme court decision strengthened its case by narrowing the kinds of ISPs the law would apply to. That, according to Virginia Solicitor General Erika Maley, made it less likely that AAR or its members would be harmed by the law.

“The Supreme Court of Virginia’s ruling invalidates many potential applications of the statute on state-law grounds, including any applications involving a taking of railroad property by ‘a private, for-profit broadband service provider,’ Maley wrote. “By tightly constraining the potential applications of the statute, the rulings make the Association’s contentions about problematic applications that could hypothetically occur even more speculative.”

AAR declined to comment.

The law, passed in 2023, required railroad companies to respond to crossing applications from ISPs within 35 days and caps the fees railroads can charge at $2,000 per crossing. Railroads 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.

The dispute between Cox and Norfolk Southern centered around the fees the railroad could charge for a crossing in New Kent County, Virginia last spring. Norfolk Southern requested fees higher than what the law allowed, and Cox said it would proceed with the project without paying. Virginia’s State Corporation Commission sided with Cox, leading the railroad to sue and eventually appeal up to the state’s highest court.

Under the Supreme Court of Virginia ruling, private, for-profit ISPs appear barred for now from invoking the law to ease railroad crossings. 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.

State Sen. Bill Stanley, R-Franklin County, a sponsor of the law, told Cardinal News the ruling was “just plain wrong.” He said if the decision stood, “the greedy railroad companies” would “continue to choose their own private greed over the public need when it comes to broadband deployment in our rural and urban parts of Virginia.”