Cequel v. Local Agency Formation Com'n
| Citation | 149 Cal.App.4th 310,57 Cal.Rptr.3d 32 |
| Decision Date | 03 April 2007 |
| Docket Number | No. C052238.,C052238. |
| Parties | CEQUEL III COMMUNICATIONS I, LLC, Plaintiff and Appellant, v. LOCAL AGENCY FORMATION COMMISSION OF NEVADA COUNTY, Defendant and Respondent; Truckee Donner Public Utility District et al., Real Parties in Interest and Respondents. |
| Court | California Court of Appeals |
Law Offices of P. Scott Browne, P. Scott Browne, Grass Valley, and Marsha A. Burch, for Defendant and Respondent.
Law Office of Porter Simon, Steven C. Gross, Truckee; Miller, Owen & Trost and Nancy C. Miller and Madeline E. Miller, for Real Parties in Interest and Respondents.
In this action Cequel III Communications I, LLC (Cequel), a franchised cable television provider, sought to invalidate the Local Agency Formation Commission of Nevada County's approval of the application of Truckee Donner Public Utility District (District) to provide broadband services, including cable television, to citizens within its jurisdictional limits. The trial court entered judgment for the Local Agency Formation Commission of Nevada County (LAFCo) on Cequel's three causes of action for validation (Code Civ. Proc., § 863), writ of mandate (Code Civ. Proc., § 1085), and declaratory relief. On appeal Cequel does not challenge the trial court's decision on its validation cause of action, but contends the trial court erred in denying its petition for writ of mandate because (1) the District lacks legal authority to provide cable television services, (2) LAFCo violated its statutory duty to determine whether there was a need for the proposed services and the services could be provided on a fiscally sound basis, and (3) LAFCo violated its duty to conduct an independent determination of whether the District was authorized to provide Broadband services. We disagree and shall affirm the judgment.
On October 22, 1999, the District submitted an application to LAFCo seeking authorization to offer telecommunication services, which the District described as wholesale high-speed telephony and data transport, Internet data transport, and cable television, within the District's boundaries, generally described as the greater Truckee area.
Cequel's predecessor in interest, USA Media, opposed the District's entry into the cable television market on the basis cable television service was not a utility service the District was authorized to provide. In light of this opposition and on advice of counsel, LAFCo required the District to agree to indemnify LAFCo for all costs of defending LAFCo in any litigation or administrative proceeding brought in connection with the District's application.
LAFCo formed an ad hoc committee to work with the District in evaluating the application. After review of the application materials, a staff report, the report of the ad hoc committee and a public hearing, LAFCo approved Resolution No. 01-01 on January 18, 2001, determining it was in the interest of the public that the District be permitted to provide the new services to the community. LAFCo approved the District's application subject to several specific terms and conditions, including that the District prepare a draft master service element for the communications services it intended to provide, that the District adopt a risk mitigation plan adequate to ensure its water and electrical service ratepayers will not be required to subsidize the new services, and that the District obtain franchise agreements with all applicable jurisdictions or reach alternative agreements satisfactory to the agencies. Upon completion of the terms and conditions, a certificate of compliance would be issued by LAFCo. Resolution No. 01-01 stated: "Only upon issuance of the Certificate of Compliance shall LACo['s] approval to provide the additional class of service be effective." The resolution gave the District two years to comply with the requirements before LAFCo's approval would expire. The two-year period could be extended on the District's showing of a good faith effort to satisfy the requirements.
On October 22, 2002, LAFCo approved a resolution extending the time for the District to comply with the terms and conditions of Resolution No. 01-01 until January 27, 2005.
In July 2004 a revised master service element for Broadband Telecommunications Services was submitted by the District to LAFCo. The District also submitted a final risk mitigation plan and a revised "Fiber to the User Business Plan" to LAFCo on July 30, 2004. The District provided LAFCo with a legal opinion regarding its financing and a copy of its earlier legal opinion regarding its authority to provide cable television service. LAFCo obtained an independent certified public accountant review of the District's financial projections for the provision of the service and a legal opinion regarding the District's risk mitigation plan. After extensive review, the ad hoc committee of LAFCo recommended LAFCo accept the master service element prepared by the District and incorporate it into the District's sphere of influence plan, determine the risk mitigation plan provides adequate assurance the District's water and electrical service ratepayers will not be required to subsidize the new services, and issue a certificate of compliance.
After a public hearing on August 11, 2004, LAFCo unanimously adopted Resolution No. 04-09 accepting the District's master service element and amending the District's sphere of influence plan accordingly. LAFCo also unanimously approved a certificate of compliance certifying the District had complied with the conditions of Resolution No. 01-01. LAFCo adopted Resolution No. 04-15 extending the time to begin providing services to January 1, 2008.
On August 26, 2004, Cequel requested LAFCo reconsider Resolution No. 01-01, Resolution No. 04-09, Resolution No. 04-15, and its certificate of compliance relating to the District's application to offer new services. Cequel first claimed LAFCo failed to independently determine that the District's business plan describes services that are needed and that the District can provide such services on a fiscally solvent basis. Second, Cequel claimed LAFCo failed to determine whether existing ratepayers will have to or already have subsidized the District's proposed new services. Third, Cequel claimed LAFCo improperly determined the new services were permissible utility services the District was authorized to provide. Cequel outlined a number of new or different facts relevant to its request.
At its September 16, 2004, meeting LAFCo reviewed the request for reconsideration. LAFCo continued the public hearing on the matter and directed the LAFCo ad hoc committee to review the request and develop recommendations for action. The ad hoc committee met a number of times thereafter to discuss the issues and hear testimony from the District and its potential competitors. The ad hoc committee submitted an extensive report, including responses, findings, and recommendations, to LAFCo regarding Cequel's request for reconsideration. At its public hearing on October 14, 2004, LAFCo reconsidered the resolutions and approved an amended Resolution No. 04-09, an amended Resolution No. 04-15, and an amended certificate of compliance with specific findings and determinations.
On October 18, 2004, Cequel filed its complaint in the trial court challenging LAFCo's actions. Trial took place on November 7, 2005. On December 16, 2005, the trial court issued a 31-page decision resolving the issues raised by the parties in the action. Judgment was subsequently entered in favor of LAFCo on all causes of action and this appeal followed.
According to LAFCo, Cequel is time-barred from challenging the determinations made by LAFCo in 2001 by Resolution No. 01-01. LAFCo argues it intended its determination of both the District's authority to provide the proposed services and the need for such services to be final at the time of Resolution No. 01-01 and that the failure of Cequel or its predecessor in interest to timely challenge the determinations made in that resolution precludes the challenges made here. LAFCo claims the doctrine of laches bars Cequel's challenges.1
Other than citing one case defining "laches," LAFCo's brief on appeal cites absolutely no legal authority supporting these arguments. This court does not have to address an argument for which no authority is furnished. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384, 127 Cal.Rptr.2d 917.) In any event, the arguments are meritless.
LAFCo's arguments presuppose Cequel or its predecessor could have properly filed a court action challenging Resolution No. 01-01 immediately after its adoption. The language of Resolution No. 01-01, however, conditions LAFCo's approval of the District's application on the District's further preparation of a master service element, adoption of a risk mitigation plan, and obtainment of franchise agreements, giving the District two years initially to accomplish these tasks. Resolution No. 01-01 provides LAFCo will only issue a certificate of compliance after the completion of all of these additional items. Resolution No. 01-01 then states: "Only upon issuance of the Certificate of Compliance shall LAFCo approval to provide the additional class of service be effective." (Italics added.) Thus, until the District successfully completed the additional requirements and a certificate of compliance was issued, LAFCo's approval was not final, but only tentative. There was no certainty the District would be able to successfully meet the additional requirements. Any legal challenge filed immediately after the adoption of Resolution No....
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