William B. STANLEY, Niolene E. Stanley, Stephen C. Parker, Kathryn A. Parker, Matthew Britt, and Michael C. Willis, on Behalf of Themselves and All Others Similarly Situated, Appellants
OZARKS ELECTRIC COOPERATIVE CORPORATION and OzarksGo, LLC, Appellees
Rehearing Denied January 15, 2020
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-17-916],
HONORABLE DOUG MARTIN, JUDGE
Evans Law Firm, P.A., Fayetteville, by: Marshall Dale Evans;
and Hirsch Law Firm, P.A., Springdale, by: E. Kent Hirsch,
Eldredge & Clark LLP, Rogers, by: Marshall S. Ney and
Katherine C. Campbell; and Eldridge Law Firm, Fayetteville,
by: John R. Eldridge III, for appellees.
Appellants William B. Stanley, Niolene E. Stanley, Stephen C.
Parker, Kathryn A. Parker, Matthew Britt, and Michael C.
Willis appeal from the Washington County Circuit Courts
order dismissing their complaint against appellees Ozarks
Electric Cooperative Corporation and OzarksGo, LLC (Ozarks
Electric). The circuit court found that the Arkansas Public
Service Commission (PSC) has primary jurisdiction of the
case. Because this is an inverse-condemnation proceeding and
otherwise involves private-property rights, appellants
complaint was properly filed in the circuit court, which has
jurisdiction over this matter. Accordingly, we reverse and
remand for further proceedings.
Standard of Review
reviewing a circuit courts order granting a motion to
dismiss, we treat the facts alleged in the complaint as true
and view them in the light most favorable to the plaintiff.
Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139.
Our standard of review is whether the circuit court abused
its discretion. Id. As to issues of law presented,
our review is de novo. Id.
Allegations in the Complaint
plaintiffs/appellants are property owners in Washington
County. The Stanleys and the Parkers own property subject to
general-utility easements. Ozarks Electric has installed and
is operating a commercial fiber-optic communications network
independent of the transmission or distribution of
electricity. The Stanleys and the Parkers allege that Ozarks
Electric entered land adjacent to the existing utility
easements to install its fiber-optic communications network.
They allege that during construction of the network, they
suffered damages, e.g., loss of use and loss of privacy, to
the land adjacent to the easements for which no compensation
was offered. They also allege that they suffered damages to
the land within the existing easements due to the increased
interference with their use of the land.
owns property through which Ozarks Electric has a
right-of-way easement for the transmission or distribution of
electricity. Britt executed this easement for Ozarks
Electrics distribution line, but the recorded easements use
is limited on its face to an "electric line or
system." He alleges that Ozarks Electric plans to
install and operate a newly constructed 100 percent
fiber-optic communications network independent of the
existing system for the transmission or distribution of
electricity. Britt seeks damages for inverse condemnation or,
alternatively, increased interference.
owns property through which Ozarks Electric installed and
maintains a transmission or distribution line for
electricity. While there are no existing easements on record
with respect to Williss property, Ozarks Electric plans to
install and operate a newly constructed 100 percent
fiber-optic communications network on his property. Willis
seeks damages for inverse condemnation or, alternatively,
Appellants allege that Ozarks Electric plans to install and
operate a commercial fiber-optic communications network that
is independent of the existing wires and cables for the
transmission or distribution of electricity. Ozarks
Electrics plans for such a network is a separate business
distinct from the generation, transmission, or distribution
of electricity. Neither the written, recorded electric
power-line easement to Ozarks (on Britts property) nor the
electric power-line easement benefiting Ozarks (on Williss
property) authorizes the installation of fiber-optic cables
for communication, internet, or television purposes.
Appellants allege that the Broadband Over Power Utility Lines
Enabling Act provides for an award of damages to property
owners for increased interference when a utility company
installs broadband over power lines without just
compensation. Appellants allege that BPL (broadband over
power lines) is technology that sends two signals down one
line: one signal is electricity, and the other is a broadband
internet signal. According to appellants, the new fiber-optic
system is not broadband over power lines; rather, it is
broadband over newly installed fiber-optic cables. They
contend that none of Ozarks Electrics existing power lines
are being used for the transmission of the internet signal.
any corporation authorized by law to appropriate private
property for its use shall have entered upon and appropriated
any real or personal property, the owner of the property
shall have the right to bring an action against the
corporation in the circuit court of the county in
which the property is situated for damages for the
appropriation[.]" Ark. Code Ann. § 18-15-102(a) (Repl.
2015) (emphasis added). A property owner is entitled to
receive just compensation when private property is taken for
a public use. Ark. Code Ann. § 18-15-103(b)(1). Arkansas Code
Annotated section 18-15-504 deals with petitions for the
assessment of damages. "If an electric utility ... fails
to obtain, by agreement with the owner of the property
through which the line may be located, the right-of-way over
the property, it may apply by petition to the circuit court
of the county in which the property is situated to have the
damages for the right-of-way assessed[.]" Ark. Code Ann.
§ 18-15-504(a). "An electric utility shall not be
required to petition a court in order to provide broadband
services over its own lines of wire, cables, poles,
or other structures that are in service at the time
that the electric utility provides broadband services over
the lines of wire, cables, poles, or other structures."
Ark. Code Ann. § 18-15-504(e)(1) (emphasis added). "An
owner of property upon which an electric utilitys lines of
wire, cables, poles, or other structures are located may
petition the circuit court of the county in which
the property is situated for any compensation to which it
might be entitled under this subchapter." Ark. Code Ann.
§ 18-15-504(e)(2) (emphasis added). Section 18-15-507
If an owner of property petitions a court under section
18-15-504(e), the amount of damages, if any, payable to the
owner for the use of preexisting lines of wire,
cables, poles, or other structures by an electric utility to
provide broadband services shall be limited to an amount
sufficient to compensate the property owner for the increased
interference, if any, with the owners use of the property
caused by any new or additional physical attachments to the
preexisting facility for the purpose of providing broadband
Ark. Code Ann. § 18-15-507(a)(2) (emphasis added).
The Broadband Over Power Lines Enabling Act
electric utility, along with affiliates and unaffiliated
entities, may own or operate a broadband system on the
electric utilitys electric-delivery system. Ark. Code Ann. §
23-18-804(a)(1), (2) & (3) (Repl. 2015). Arkansas Code
Annotated section 23-18-805(a) provides that "[e]xcept
as provided in this subchapter, neither the state nor any
agency, instrumentality, or
political subdivision of the state has jurisdiction over (1)
an electric utilitys ownership or operation of a broadband
system; or (2) the provision of broadband services by the
electric utility, a broadband affiliate, or a broadband
operator." "Nothing in this subchapter shall
interfere with the Arkansas Public Service Commissions
authority to regulate public utilities pursuant to section
23-2-301 et seq." Ark. Code Ann. § 23-18-805(b).
23-3-119 provides that any person unlawfully treated by a
public utility may complain to the PSC in writing, and the
PSC has the authority to investigate and hold public
hearings. The PSC shall also have the authority "to
mandate monetary refunds and billing credits, or to order
appropriate prospective relief as authorized or required by
law, rule, regulation, or order." Ark. Code Ann. §
The jurisdiction of the commission in such disputes is
primary and shall be exhausted before a court of law or
equity may assume jurisdiction. However, the commission
shall not have the authority to order payment of damages or
to adjudicate disputes in which the right asserted is a
private right found in the common law of contracts, torts, or
Id. (emphasis added).
statute specifically grants the PSC "the authority to
adjudicate individual disputes between consumers and
the public utilities which serve them when those
disputes involve public rights. " Ark. Code
Ann. § 23-3-119(f)(1) (emphasis added). Furthermore,
Public rights which the commission may adjudicate are those
arising from the public utility statutes enacted by the
General Assembly and the lawful rules, regulations, and
orders entered by the commission in the execution of the
statutes. The commissions jurisdiction to adjudicate public
rights does not and cannot, however, extend to disputes in
which the right asserted is a private right found in the
common law of contracts, torts, or property.
Ark. Code Ann. § 23-3-119(f)(2).
the circuit court granted Ozarks Electrics motion to dismiss
because it found that the PSC had primary jurisdiction over
the matter. Subject-matter jurisdiction is the power of the
court to hear and determine the subject matter in controversy
between the parties. Perroni v. Sachar, 2017 Ark.
59, 513 S.W.3d 239. An Arkansas court lacks subject-matter
jurisdiction if it cannot hear a matter "under any
circumstances" and is "wholly incompetent to grant
the relief sought." Edwards v. Edwards, 2009
Ark. 580, at 4, 357 S.W.3d 445, 448 (quoting J.W.
Reynolds Lumber Co. v. Smackover State Bank, 310 Ark.
342, 352-53, 836 S.W.2d 853, 858 (1992)). Circuit courts have
original jurisdiction of "all justiciable matters not
otherwise assigned pursuant to" the constitution. Ark.
Const. amend. 80, § ...