During the 2019 Regular Session, the Mississippi Legislature passed “The Mississippi Broadband Enabling Act” (Miss. Code Ann. § 77-17-1 et seq.), which permits electric cooperatives to establish, acquire, and wholly or partially own one or more broadband affiliates. The Act was designed to permit rural electric cooperatives to provide high-speed internet to their customers. It allows an electric cooperative to grant permission to an affiliate or other broadband operator to use the electric delivery system of the electric cooperative to provide broadband services. The Act basically allows an electric cooperative to grant an easement without the landowner’s consent. It states that “[t]he use of the electric cooperative’s electric delivery system for the provision of broadband services by the affiliate or other broadband operator shall not be considered an additional burden on the real property upon which the electric cooperative’s electric delivery system is located and shall not require the affiliate or other broadband operator to obtain the consent of anyone having an interest in the real property upon which the electric cooperative’s electric delivery service is located.” The landowner may petition the circuit court of the county in which the property is located for any damages to which the landowner believes it is entitled due to property damage from the use of the electric delivery system.
Note 1: The question has been raised on the Mississippi Bar Real Property Section Listserve as to whether the Act’s provision allowing an electric cooperative to grant permission to an affiliate or other broadband operator to use the electric delivery system without the landowner’s consent amounts to a taking of the landowner’s property without due compensation.
Note 2: This issue was a sleeper until the state received federal pandemic money in the spring of 2020 and began steering a substantial chunk of that money into expanding broadband access into rural areas. S.B. 3046, which became law on July 9, 2020, directed $65 million into the Mississippi Electric Cooperatives Broadband COVID-19 Grant Program and $10 million into the COVID-19 Broadband Provider Grant Program. Now that the build-out authorized by the Broadband Enabling Act is underway, more questions about the easement issue are likely to be raised.