is Comcast a utility? do they have a legal right to access utility easements?

Question

In my small town (Lafayette, CO), Comcast is upgrading the fiber network which involves going onto residents' properties to access the green box in the yard.

For reasons beyond my comprehension, one of our residents thinks that Comcast owes him $10k for the privilege of accessing the cable box in his back yard: http://www.dailycamera.com/lafayette-news/ci_32228752/lafayette-residents-comcast-dispute-endangering-service-hundreds-neighbors

In February of 2015, the FCC ruled in favor of net neutrality which reclassified broadband as a telecom (i.e. a utility). This, presumably, meant that cable providers were considered to be utilities. And, as a utility, they enjoy the benefits of being able to access utility easements.

In February of 2017, our city entered into a franchise agreement with Comcast granting them access to the utility easements:

2.1 Grant (A) The City hereby grants to Grantee a nonexclusive authorization to make reasonable and lawful use of the Rights-of-Way within the City to construct, operate, maintain, reconstruct and rebuild a Cable System for the purpose of providing Cable Service subject to the terms and conditions set forth in this Franchise and in any prior utility or use agreements entered into by Grantee with regard to any individual property. This Franchise shall constitute both a right and an obligation to provide the Cable Services required by, and to fulfill the obligations set forth in, the provisions of this Franchise.

2.2 Use of Rights-of-Way (A) Subject to the City's supervision and control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Rights-ofWay within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable System within the City. Grantee, through this Franchise, is granted extensive and valuable rights to operate its Cable System for profit using the City's Rights-of-Way in compliance with all applicable City construction codes and procedures. As trustee for the public, the City is entitled to fair compensation as provided for in Section 3 of this Franchise to be paid for these valuable rights throughout the term of the Franchise.

In June of 2018, net neutrality was repealed.

My gut says that our city signed an agreement, at a point in time when broadband was classified as a utility, that gave Comcast the right to access easements. A deal is a deal.

There's a theory floating around that, because net neutrality classified broadband as a utility and net neutrality was repealed, Comcast is no longer a utility and therefore cannot access utility easements.

Is anyone in this forum able to provide some clarity?

Answer 1

The franchise provided to Comcast by the town is separate and distinct from any legal theoretical argument that broadband is a utility.

The former may have been created to solidify the potential rights provided by the latter, along with ensuring the responsibilities on each side, but evidently does not rely on it.

However, the franchise is a contract between the town and Comcast; this is predicated on the ability of the town to grant "a nonexclusive authorization ..." in the first place, for example by assigning use of an easement it possesses already.

Whether or not the town has or had such a right would be something specific to the case, perhaps covered by its incorporation documents or a constitution, or other legal arguments using precedent.