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The Indiana Court of Appeals recently issued a decision in a dispute between a public utility and a local municipality that may be of interest to electric utilities.  Duke Energy Indiana filed a lawsuit against the City of Franklin after the city announced plans to improve the intersection of two streets near State Road 44.   Duke alleged that the expanded intersection would adversely impact its established transmission easement and overhead line and roadside utility pole.

After an evidentiary hearing, the trial judge denied Duke’s request for an injunction stopping the project.  The judge found that the project would not unreasonably interfere with Duke’s easement rights and that Duke was unlikely to prevail on any of its claims at trial.

In considering Duke’s appeal, a panel of the Court of Appeals unanimously upheld the trial judge’s decision.   Duke Energy Indiana, LLC v. City of Franklin, 41A01-1607-CT-1549 (December 16, 2016).   The appeals court held that “the reasonable necessity of an intersection expansion outweighed whatever injurious effect that expansion would have on an electric utility’s enjoyment of its easement.”  It considered Duke’s claim that the increased volume and speed of traffic near the utility pole would pose greater risks to its maintenance crews, but noted that the road could be closed or traffic re-routed as needed for utility work.   The court concluded that the public benefits from beautification of the corridor, improved traffic flow, and enhanced development of the area overrode any occasional inconvenience to Duke.

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On November 2, 2016, the Federal Communication Commission (FCC) released their broadband privacy protection order, which came almost 18 months after the FCC reclassified broadband internet service (BIAS) as a common carrier telecommunication service under Title II of the Communications Act (the Act). The order communicates three main goals to be accomplished via the expanded consumer privacy standards: transparency, choice, and security for customers.

The FCC explained that expanded privacy protections for consumers are necessary because ISP’s have “untethered” access to their customer’s internet information. The order broadened the definitions of “telecommunications carrier” to include all carriers providing telecommunications services subject to Title II and “customer” encompassing current, former, and applicant customers. Three types of customer propriety information (PI) are included within the scope of the new rules: customer proprietary network information (CPNI); personally identifiable information (PII), defined as “any information that is linkable to an individual or device”; and “content of communications”, defined as “any part of the substance, purport, or meaning of a communication or any other part of a communication that is highly suggestive of the substance, purpose, or meaning of a communication.” Any “de-identified” data is not subject to the new rule.

To accomplish transparency, the FCC adopts privacy policy notice requirements mandating that ISPs provide easy access to “clear and conspicuous, comprehensible, and not misleading information about what customer data the carriers collect, how they use the data, who it is shared with and for what purposes”, including the categories of entities to which the carrier discloses access to customer PI, and “how customers can exercise their choices regarding privacy options.” These notices must be provided at the point of sale prior to purchase and advanced notice of material changes must be provided to existing customers.

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Section 253(c) of the Communications Act, as amended in 1996, prohibits any “state or local statute or regulation, or other state or local legal requirement” to “have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications” including wireless communications.   This is commonly referred to as local government having barriers to entry.  The FCC is asking for public input on ways in which the Commission promotes wireless infrastructure deployment through a declaratory ruling. Many wireless providers are deploying small cell and distributed antenna systems (DAS) to meet the needs for coverage and to increase capacity. The facilities used in these networks are smaller and less obtrusive than traditional cell towers and antennas, but must be deployed more densely to function effectively. This has led to substantial increases in volume of applications for deployment for local land-use authorities, and the number of applications will likely accelerate as mobile data traffic is expected to grow by five times by 2022.

Mobilitie, LLC petitioned the FCC to issue a declaratory ruling interpreting three phrases in §253(c) of the Communications Act of 1934 to speed the deployment of advanced wireless infrastructure.  Mobilitie recommends the FCC interpret “fair and reasonable compensation” to mean only charges that enable a locality to recoup its costs related to issuing permits and managing the rights of way and that additional charges are unlawful. That “competitively neutral and nondiscriminatory” be interpreted as charges that do not exceed those imposed by other providers for similar access. And that “publicly disclosed by such government” obligate localities to make available the charges they previously imposed on others to a provider seeking access to the rights-of-way. Mobilitie thinks interpretation is necessary because they have dealt with varying types of fees from localities across the nation that seem exorbitant.  Fees have included application fees ranging from $1,000 to $10,000; annual per-pole fees up to $30,000 for each pole; percentage-of-revenue fees which have exceeded what localities can charge cable providers under federal law; fiber fees which have ranged from $0.19 per foot per year to fees based on fair market value of adjacent private property; and third-party manager fees.

The FCC is interested in comment, including updated information to help the Commission evaluate whether further action is warranted. This includes which actions (or inactions) of local government have hindered introduction of new services, obstructed efforts to improve existing service, or deterred prospective providers from entering the markets. The Commission requests specific information and detailed explanations, with greater weight given to systematic data. Specifically, how much time elapses between filing an application and approval or denial? How often are applications approved or denied and on what basis?

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On December 16, 2016, the Court of Appeals found that “the reasonable necessity of an intersection expansion outweighed whatever injurious effect that expansion would have on an electric utility’s enjoyment of its easement.” Duke Energy Indiana, LLC v. City of Franklin, 41A01-1607-CT-1549, at 23. Duke Energy Indiana, LLC (“Duke”) had an easement for the transmission of electrical energy in the area of the City of Franklin’s proposed traffic plan, which would connect a four-lane state road to two city streets. Duke, believing that the plan would unreasonably interfere with its easement rights, filed for a preliminary injunction. The trial court denied the request, finding that Duke failed to establish unreasonable interference, and therefore, failed to show a reasonable likelihood of success at trial. Duke asserted that the increased volume and speed of traffic proceeding past the utility pole, located adjacent to and just northwest of the proposed intersection, would increase the hazard to maintenance and repair crews. The trial court found that Duke did not show material impairment, unreasonable interference, or irreconcilable conflict. Instead, the trial court found that Duke essentially argued that to repair and maintain the utility pole and transmission lines, Duke’s crews would interfere with the public’s use of the road. While the court found this concern valid, it did not address the issue of Duke’s use, and the need for additional traffic measures was not found to equate unreasonable interference with Duke’s easement. Duke appealed.

The Court of Appeals addressed Duke’s two claims related to its contention of a reasonable likelihood of success on the merits at trial: (1) the City should not be able to expand the intersection because it does not have adequate property interests in portions of the land and (2) the proposed expansion of the intersection unreasonably burdens its rights pursuant to the easement. The Court of Appeals found that the first claim was essentially a trespass action. However, as an easement holder, Duke lacked standing to maintain an action for trespass for invasion of a right of way or easement. As for the second claim, the Court found that the proposed intersection was a reasonably necessary use of the City’s right-of-way, as it will beautify the corridor, enhance safety, and spur growth. Duke would still be able to repair and maintain the transmission lines and utility poles by simply using additional traffic measures. Ultimately, the Court of Appeals affirmed the trial court’s decision, finding that the reasonable necessity of the expansion outweighed the injury to Duke’s enjoyment of its easement.

Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

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Trees can be assets or a nuisance, depending on one’s perspective and situation. While they may provide shade, privacy or other value to one person, they may interfere with a neighbor’s enjoyment and safe use of his own property.

Questions often arise about the ownership of trees growing on or near the boundary between adjoining properties. Which landowner is responsible for their care or removal? If there is disagreement over what is needed, whose interests should have priority?  The answers depend on the circumstances and equities of the situation. And because state laws and local ordinances often differ, they can also vary depending on the particular jurisdiction hearing the case. But, in general, the analysis begins with a determination of the tree’s ownership.

In Indiana, the rights and responsibility for a tree’s care is vested in its owner, and ownership is determined solely by the location of the tree’s trunk. The author presumes the location is made at ground level, but that point is not always clear in the case law. If the trunk of the tree is entirely on Brown’s land — even if its limbs and branches extend across the boundary line or its roots encroach onto Smith’s land – the law typically considers the tree to be the property of Brown. Absent a contract or easement that grants property rights in the tree to another person, Brown has the exclusive right to decide whether to preserve it or cut it down. That generally is true regardless of Brown’s motivation in doing so or the impact the tree’s removal may have on neighboring property. See, Luke v. Scott, 187 N.E. 63 (Ind. Ct.App. 1933).

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Up to par

Few people would be as qualified as a Lebanon-based litigation attorney, who is also an Indiana Golf Hall of Fame member and Crooked Stick Golf Club member, to co-chair the 2016 BMW Championship at Crooked Stick Golf Club in Carmel Sept. 6-11.

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In the recent case of Parkview Hospital, Inc. v. Frost, which is now before the Indiana Supreme Court, the issue of the reasonableness of hospital charges in the context of a contested hospital lien is addressed and may pose some issues with a hospital’s chargemaster. Frost was seriously injured in a motorcycle collision and was uninsured and incurred $625,117.66 in charges from the hospital which subsequently filed a statutory hospital lien under IC 32-33-4 et. seq.  No financial responsibility agreement was signed until after Frost left the hospital.  As authorized under the statute, Frost argued against the lien alleging that Parkview’s charges were unreasonable because they were greater than the amounts the hospital accepts from patients with private health insurance or government healthcare programs.  Parkview sought the determination of the trial court that, as a matter of law, their default medical expense rates were reasonable.  The Court of Appeals, in affirming the trial court, held that the trial court “correctly found that Frost should be allowed to discover [this] evidence” and that it was admissible under the Hospital Lien Act in determining the reasonableness of the charges.  The Indiana Supreme Court accepted transfer and oral argument was heard on September 1, 2016.

Depending on the outcome from the Indiana Supreme Court, hospitals might expect more disputes over the reasonableness of charges in uninsured situations.

James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.

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It’s an unlucky number for a lucky sports trick – 13 holes in one.

Kent Frandsen only gives luck partial credit.

“The better you are, the more likely you are to make one. It’s that simple,” said Frandsen, 65, who holed his first ace at age 18 and his 13th two years ago. “It takes luck to make the shot.  But if you hit balls on the green all the time, you have a much better chance at having one go in.”

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On June 21, 2016 the FAA issued its final rule on small Unmanned Aircraft Systems (sUAS) codified at 14 C.F.R. Parts 107 (Parts 21, 43, 61, 91, 101, 107, 119, 133, and 183 are also impacted).  The primary effect of this final rule is that commercial use of qualified small UAS that are operated in accordance with the sUAS rule will no longer require special airworthiness certificates, section 333 exemptions, or certificates of waiver or authorization (COAs).

The sUAS rule:

  • Classifies “small” UAS
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On May 18, 2016, the Department of Labor announced the publication of its final rule updating the overtime regulations (“Overtime Rule”) under the Fair Labor Standards Act (FLSA). The FLSA applies to “Covered Enterprises” as well as individuals. Covered Enterprises include businesses with annual sales or business of at least $500,000. However, hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies are “named enterprises,” meaning they are covered by the FLSA regardless of their total annual sales or business done. Under individual coverage, employees may be entitled to FLSA protection if they themselves are engaged in interstate commerce or in the production of goods for interstate commerce.

The Overtime Rule, both current and revised, applies to an employee of a CE unless the employee is “exempt.” The FLSA’s exemptions include ”bona fide” Executive, Administrative, and Professional employees as well as certain computer professionals and outside sales employees. The DOL’s revised rule will increase the number of employees that are not exempt from the Overtime Rule. The newly revised rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the revised rule:

1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);

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