Fiber optic cables used to provide commercial telecommunications services are increasingly run through the existing utility easements of electric cooperatives, but such use may exceed the easement’s limitations. The Eighth circuit recently held in Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017) that commercial telecommunication use of an electric utility’s easement was impermissible. New Mexico should not follow the Eighth Circuit in its determination that commercial fiber use in electrical easements is not permissible. New Mexican communities could greatly benefit from fiber accessibility. However, there are several natural disincentives that exist in the state that could make it unattractive to commercial telecommunications companies. Allowing commercial telecommunications to deliver broadband internet through electric utility easements could combat these disincentives. Barfield is the ideal case to use for comparison because the controlling New Mexico law, while not identical, is comparable to the Missouri law at question. New Mexican electric cooperatives are poised to allow commercial telecommunications use of their easements in a manner similar to the use condemned in Barfield. The New Mexican courts would likely have to reach the same conclusion as the Eighth Circuit based on the similarity of the laws in question. This could be prevented by creation of legislation that would make fiberoptic use of electric utility easements a non-burden by statute. Taking this action would benefit New Mexico because of the state’s geographical and social, situation. Additionally, the policies the New Mexico legislature has supported in regards to fiber optics connectivity would be advanced by allowing commercial telecommunications in utility easements. The need for fiber optic connectivity is distinct from the situation in Barfield, compelling New Mexico to create a preemptive legislative answer.
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Janette A. Duran,
Bringing Broadband to The Desert: Rural New Mexico, Fiberoptic Cable, and Electric Utility Cooperatives,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol49/iss2/9