(Source: MIRS.news, Published 01/24/2025) The Michigan Supreme Court declined to opine on whether a telecommunications company needed permission from a railway company to install underground fiber optic internet cables below a railroad crossing. 

The justices heard oral arguments in November, but said on Friday they are “not persuaded that the questions presented should be reviewed.” 

Justice Megan Cavanagh wrote that she believes the Norfolk Southern Railway Company’s (NSRC) 2021 has the right to keep their property free from trespass and significant encroachment or burden." 

In a concurring opinion, Chief Justice Elizabeth Clement held current statute and common law allow Metro Fibernet to install cables under NSRC’s tracks on the public right-of-way. She encouraged the Legislature to look at the issue to ensure it “is clearly addressed in the applicable statutory scheme.” 

In March 2021, the Legislature received HB 4422, sponsored by then-Rep. Michele Hoitenga (R-Manton), which would have allowed underground installations, and HB 4452, sponsored by then-Rep. Joseph Bellino Jr. (R-Monroe), which would have allowed the underground crossings, but with the railroad’s permission and added a “minimum crossing fee” of $2,500. 

Both were referred to the Committee on Communications and Technology where they sat. 

Initially, Metro Fibernet cited MCL 462.265 when informing NSRC’s lessee, the Jackson & Lansing Railroad Company, in 2019 that it wished to bore under a railroad right-of-way to install fiber optic cable, but NSRC said Metro used a statute that does not apply to underground cables. 

Rather, NSRC contended, the telecommunications company should have followed the railway company’s procedures. 

NSRC asked the Michigan Department of Transportation to settle the dispute, but an administrative law judge held the department lacked jurisdiction, prompting NSRC to file a lawsuit in Ingham County Circuit Court. 

The trial judge dismissed the suit, holding MCL 462.265 did not apply, but the railway company failed to identify another statute that did. The Michigan County of Appeals affirmed in an unpublished opinion. 

“I understand that allowing a cable company to install cables under a railroad track without the railroad’s permission raises several safety concerns,” Clement wrote. “However, this Court can only apply existing statutes and common law. I believe that these allow (Metro Fibernet) to install the cables under NSRC’s tracks at the public right-of-way.” 

Justice Kimberly Ann Thomas did not participate because the case was heard prior to her taking the bench in January.