Suddenlink, city in standoff

BUCKHANNON – Negotiations between Suddenlink and the city of Buckhannon are at a standstill.

City Council members and representatives from the cable and Internet provider on Monday failed to resolve a dispute over a fiber-optic line the city says Suddenlink installed without its permission.

Suddenlink Director of Government Relations Michael Kelemen, Suddenlink Senior Director of Operations Peter Brown, City Council and the city’s TV Cable Board convened at City Hall Monday evening for a special meeting about the right-of-way conflict, among other matters.

The right-of-way issue was drawn to council’s attention at its Nov. 7 meeting, when city engineer Jay Hollen and city attorney Dave McCauley informed council that the company had installed a fiber-optic line along the border of the city cemetery without municipal permission – and without offering the city any consideration, or payment.

Suddenlink officials were supposed to receive an executed right-of-way agreement from the city before proceeding, Hollen said, but installed the line prior to receiving the document.

The fiber-optic line is intended to prevent outages in telephone, cable and Internet services, Suddenlink officials said.

“We understand that this was supposed to be – and probably is – something that adds redundancy to the system, so if there’s a cut in the line some place else, some of the outages that have been experienced recently in the Buckhannon and Elkins system, this (new fiber-optic line) would be one of those things that would avert or minimize outages,” McCauley said at the outset of Monday’s meeting, calling the installation of the line a “subscriber-friendly move.”

Nonetheless, McCauley said he feels there are “substantial issues” in the right-of-way agreement that need to be discussed with Suddenlink representatives as well as City Council.

The first problem is that the right-of-way Suddenlink proposed is a perpetual right-of-way. A perpetual right-of-way is problematic because Suddenlink doesn’t own the land along which the fiber-optic line runs. Instead, Suddenlink leases the land from the city for a small amount annually, and the term of the lease is tied to the term of the city’s franchise agreement with Suddenlink, which is set to expire Dec. 31, 2014.

“Presumptively in West Virginia, right-of-way or easement documents unless otherwise stated run with the land, that is to say they’re permanent,” McCauley said. “The problem with a permanent right-of-way given to Suddenlink is it’s going to a leased premises. We don’t want to grant a permanent right-of-way or easement across city property to what is only a leasehold area.”

Kelemen said he was originally under the impression that Suddenlink “was just trying to get on an existing right-of-way.”

“Subsequently, I learned in the construction group’s zeal to get this redundancy in place and activated, they either misunderstood or did not for whatever reason understand that the easement agreement needed to be signed first,” Kelemen said, “and so I apologize to council for that.”

He went on to say he believed the underground line is located in a local utility company’s already existing right-of-way. City engineer Jay Hollen verified Kelemen’s statement, saying parts – but not all – of the fiber-optic line are located within a power company’s right-of-way.

“From my understanding, from in and around Buckhannon and Upshur County, they do not want that going on,” Hollen told Kelemen. “That’s why a separate right-of-way was going to be required.”

McCauley pointed out that Suddenlink had technically trespassed on the city’s property.

Kelemen said although he appreciates the city’s position relative to the terms of the right-of-way, he thinks state law may permit cable companies to use already existing right-of-ways without securing separate signed agreements.

“I think the bigger question now is whether or not we’re on a utility right-of-way because state law does contemplate that cable companies can use easements or rights-of-way that have been designated or dedicated for compatible uses,” he responded.

McCauley replied that because the area in question is municipal property, Suddenlink still needs to secure a right-of-way “separate and apart” from another utility company’s right-of-way.

“I want to be very, very clear,” McCauley said. “If this is on city property and we as a city gave a right-of-way to the power company, that in no shape, way, manner or form ever – not in any circumstance – could result in a right to any other utility provider including Suddenlink (to use the land).

“That’s impossible, and I can tell you after 31 years of practicing property law, there’s no such statute out there,” McCauley continued. “There is no such law I want to see that law.”

The city attorney and Councilman Tom O’Neill, who is also an attorney, have asked Kelemen to forward them a copy of the state law.

“We can resolve this, or at least have more clarity this week,” Kelemen said.

McCauley replied, “If the state Legislature somehow has passed legislation that says when a municipality gives a right-of-way to another utility provider that a cable company can come along and also use that right-of-way, that would be something worth challenging in the courts.”

No solution was reached Monday. Council’s next meeting is slated for 7 p.m. Thursday at City Hall.

Contact Katie Kuba by email at Follow her on Twitter at IMT_Kuba.