Can a competing (non-incumbent) Tennessee telecommunications carrier exercise eminent domain to lay fiber or other lines on private property?

Plain-English summary

The AG was asked whether a competing (non-incumbent) telecommunications carrier in Tennessee, holding a certificate of public convenience and necessity from the Tennessee Regulatory Authority for competing access and transport services, could exercise eminent domain under Tenn. Code Ann. § 65-21-201 et seq. to acquire rights-of-way for its lines. The answer: yes.

The relevant statutes are old. Section 65-21-201 lets any "person or corporation organized for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof" build, operate, and maintain transmission lines on public highways, public lands, private lands, and along railroads and their structures. Section 65-21-204 then provides a condemnation remedy: if the telephone or telegraph company cannot secure right-of-way by consent, contract, or agreement, it may "proceed to procure the condemnation of such property, lands, rights, privileges, and easements, in the manner prescribed by law for taking private property for works of internal improvement."

The Tennessee Court of Appeals confirmed that this statute authorizes telephone companies to condemn easements for telecommunications lines (American Tel. & Tel. Co. v. Proffitt, applying it to a long-distance carrier laying fiber-optic cable under private land).

The opinion's main question is whether the 1995 telecommunications-reform legislation, which introduced the category of "competing telecommunications service provider" (entities certified to provide telephone services after June 6, 1995), left those providers outside the eminent-domain statutes. The AG concludes no. The 1995 legislation (Chapter 408 of the 1995 Tennessee Public Acts) added the new category but did not amend § 65-21-204 or otherwise restrict eminent-domain authority to "incumbent local exchange telephone companies" (defined at § 65-4-101(4)). A competing telecommunications service provider, as defined at § 65-4-101(1), is a provider of telephone (now "telecommunications") services within the scope of § 65-21-201. So a competing provider is entitled to exercise eminent domain under § 65-21-204.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is a "competing telecommunications service provider"?
A: Under Tenn. Code Ann. § 65-4-101(1), any individual or entity that provides specified services (including telephone and telegraph) and is certified after June 6, 1995. The category was created by the 1995 telecommunications-competition reforms.

Q: Does the carrier need TRA approval for each condemnation?
A: This opinion does not address that procedural question. The carrier needs the TRA certificate of public convenience and necessity to be in the eminent-domain-eligible category. Whether project-specific approval is required is governed by other statutes and regulations.

Q: Can a landowner challenge the condemnation?
A: Yes, in the manner provided by Tennessee eminent-domain law generally. The opinion identifies the source of the carrier's power; it does not address compensation procedures, necessity challenges, or other defenses.

Q: Does this apply to broadband-only providers or wireless?
A: The statutory text reaches transmission of "intelligence" and explicitly includes telegraph, telephone, "or other system of transmitting intelligence the equivalent thereof, which may be invented or discovered." A court would likely apply that broadly to modern broadband and fiber-optic transmission. Wireless siting and tower construction involve a different overlay of zoning and federal law (Telecommunications Act § 332).

Q: Could the legislature have excluded competing carriers?
A: It could have. The 1995 legislation deliberately did not. The AG opinion treats that legislative choice as decisive.

Background and statutory framework

Tennessee's transmission-line eminent-domain statute traces back to the early days of the telegraph and was carried forward to cover telephone lines. The statute's broad "or other system of transmitting intelligence" phrase has allowed it to apply to successive generations of telecommunications technology without legislative updates. The 1995 reform (chapter 408 of the 1995 Public Acts) opened Tennessee local-exchange markets to competition and created the certification framework now reflected in § 65-4-101. The AG opinion essentially confirms that the 1995 reform did not strip the new entrants of the same condemnation tools incumbent providers used. Without that confirmation, market entry would have been impractical, since competing carriers need to acquire physical paths to deliver service.

Citations and references

Statutes:

• Tenn. Code Ann. § 65-4-101(1) (competing telecommunications service provider definition)
• Tenn. Code Ann. § 65-4-101(4) (incumbent local exchange telephone company definition)
• Tenn. Code Ann. § 65-21-201 et seq. (transmission of intelligence; rights-of-way)
• Tenn. Code Ann. § 65-21-201 (authority to construct, operate, and maintain lines)
• Tenn. Code Ann. § 65-21-204 (condemnation remedy when right-of-way not obtained by consent)
• 1995 Tenn. Pub. Acts, ch. 408 (telecommunications competition reform)

Case:

• American Tel. & Tel. Co. v. Proffitt, 903 S.W.2d 309 (Tenn. Ct. App. 1995) (Tennessee Court of Appeals; long-distance carrier may exercise eminent domain for fiber-optic cable)

Subject

Opinion No. 15-16, Exercise of Eminent Domain by Competing Telecommunications Service Provider, March 3, 2015

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-16.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 3, 2015
Opinion No. 15-16
Exercise of Eminent Domain by Competing Telecommunications Service Provider

Question
Is a telecommunications provider that has been granted a certificate of public convenience and necessity by the Tennessee Regulatory Authority to provide competing access services and transport telecommunications services in Tennessee entitled to exercise right-of-way and eminent domain powers under Tennessee law, specifically Tenn. Code Ann. § 65-21-201 et seq.?

Opinion
Yes. A provider of competing telecommunications services is entitled to exercise the power of eminent domain.

ANALYSIS

Tennessee Code Ann. § 65-21-201 provides:

Any person or corporation organized for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof, which may be invented or discovered, may construct, operate, and maintain such telegraph, telephone, or other lines necessary for the speedy transmission of intelligence, along and over the public highways and streets of cities and towns, or across and under the waters, and over any lands or public works belonging to this state, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads, and on and over the bridges, trestles, or structures of such railroads.

Tennessee Code Ann. § 65-21-204 further provides:

In the event such telegraph or telephone companies should fail, upon application to such individuals, railroads, companies, to secure such right-of-way, by consent, contract, or agreement, then such telegraph or telephone corporations shall have the right to proceed to procure the condemnation of such property, lands, rights, privileges, and easements, in the manner prescribed by law for taking private property for works of internal improvement.

Providers of telephone service, therefore, are entitled to exercise the power of eminent domain to condemn land as necessary to provide their service. American Tel. & Tel. Co. v. Proffitt, 903 S.W.2d 309, 311 (Tenn. Ct. App. 1995) (statute authorizes long-distance telecommunications provider to exercise eminent domain power in order to lay fiber-optic cable under private land).

Competing telecommunications service providers may exercise eminent domain power under Tenn. Code Ann. § 65-21-204 as well. A "competing telecommunications service provider" is any individual or entity that provides, among other things, telephone and telegraph services and is certified as a provider of those services after June 6, 1995. Tenn. Code Ann. § 65-4-101(1). The General Assembly recognized the existence of such companies in Chapter 408 of the 1995 Tennessee Public Acts and amended the laws accordingly. No changes were made after this enactment to Tenn. Code Ann. § 65-21-204 or any other provision related to the exercise of eminent domain by telephone companies, and no other provision limits the power of eminent domain to "incumbent local exchange telephone companies," see Tenn. Code Ann. § 65-4-101(4), a term that describes the entities to which Tenn. Code Ann. § 65-21-204 applied before "competing telecommunications service providers" were recognized. As a provider of telephone (now commonly called "telecommunications") services, therefore, a provider of competing services is entitled to exercise the power of eminent domain under Tenn. Code Ann. § 65-21-204.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN N. WIKE
Senior Counsel

Requested by:
The Honorable Charles M. Sargent
State Representative
206 War Memorial Building
Nashville, Tennessee 37243