City of Bristol, Va v. Earley

• Decision Date: 16 May 2001
• Docket Number: No. 1:00CV00173.,1:00CV00173.
• Citation: 145 F.Supp.2d 741
• Court: U.S. District Court — Western District of Virginia
• Parties: CITY OF BRISTOL, VIRGINIA, Etc, Plaintiff, v. Mark L. EARLEY, Attorney General, et al., Defendants.

145 F.Supp.2d 741

CITY OF BRISTOL, VIRGINIA, Etc, Plaintiff, v. Mark L. EARLEY, Attorney General, et al., Defendants.

No. 1:00CV00173.

United States District Court, W.D. Virginia, Abingdon Division.

May 16, 2001.

James Baller, The Baller Herbst Law Group, P.C., Washington, DC, J.D. Bowie, Bristol, VA, for Plaintiff.

Judith Williams Jagdmann, Deputy Attorney General of Virginia, and A. Ann Berkebile, Assistant Attorney General of Virginia, Richmond, VA, for Defendants Mark L. Earley, Attorney General and Commonwealth of Virginia.

Edward J. Fuhr, Hunton & Williams, Richmond, VA, for Intervenor-Defendant Virginia Telecommunications Industry Association.

Steven R. Minor, Elliott Lawson & Pomrenke, Bristol, VA, for Amicus Curiae Congressman Rick Boucher and Amicus Curiae Blue Ridge Power Agency.

OPINION

JONES, District Judge.

In this suit by a municipality seeking a declaratory judgment that a Virginia statute is preempted by the federal Telecommunications Act of 1996, I grant summary judgment in favor of the plaintiff and declare the Virginia statute unenforceable under the Supremacy Clause of the Constitution.

I

The plaintiff in this case is the City of Bristol, Virginia, doing business as the Bristol Virginia Utilities Board ("City"). The City filed a complaint against Mark L. Earley, Attorney General of Virginia, and against the Commonwealth of Virginia, requesting a declaratory judgment that a Virginia statute prohibiting the City from providing fiber optic telecommunications services to the public is preempted by the federal Telecommunications Act of 1996 ("Telecommunications Act" or "Act"), 47 U.S.C.A. § 253(a) (West 1991 & Supp. 2000). By order dated February 2, 2001, the Virginia Telecommunications Industry Association was added as a party defendant in response to its motion to intervene under Federal Rule of Civil Procedure 24.

At issue is a 1999 Virginia statute providing that

no locality shall establish any department, office, board, commission, agency or other governmental division or entity which has authority to offer telecommunications equipment, infrastructure, ... or services ... for sale or lease to any person or entity other than (i) such locality's departments, offices, boards, commissions, agencies or other governmental divisions or entities or (ii) an adjoining locality's departments, offices, boards, commissions, agencies or other governmental divisions or entities, so long as any charges for such telecommunications equipment, infrastructure and services do not exceed the cost to the providing locality of providing such equipment, infrastructure or services.

Va.Code Ann. § 15.2-1500(B) (Michie Supp.2000). The effect of this legislation is to prohibit localities in Virginia from competing in the public marketplace with commercial providers of telecommunications services and equipment.¹ The City contends that this statute thus violates the Telecommunications Act, which provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." 47 U.S.C.A. § 253(a) (emphasis added).

Attorney General Earley and the Commonwealth filed a motion to dismiss the action, and the City moved for summary judgment. Written and oral argument has been presented, and the case is ripe for decision.² In summary, I hold that the words "any entity" in the federal statute plainly include a municipality. The issue is not whether allowing local government to compete with commercial providers is good public policy or not. That decision has been made by Congress, and under the Commerce Clause of the Constitution, its decision trumps any conflicting state law.

II

A

In support of their motion to dismiss, Attorney General Earley and the Commonwealth contend that the City lacks standing to bring suit under federal and state law. It is true that some courts have held that political subdivisions of a state, such as cities, lack standing to challenge a state statute on constitutional grounds. See, e.g., Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1363 (9th Cir.1998). The theory behind such a rule is that a state's political subdivisions are "so thoroughly controlled by the body they are suing that the litigation amounts to a suit by the state against itself, [therefore lacking] live adversariness ...." Rogers v. Brockette, 588 F.2d 1057, 1065 (5th Cir.1979). However, the majority of courts have rejected this rule, particularly in Supremacy Clause challenges. See, e.g., Branson School Dist. RE-82 v. Romer, 161 F.3d 619, 628 (10th Cir.1998) ("[W]e conclude that a political subdivision has standing to bring a constitutional claim against its creating state when the substance of its claim relies on the Supremacy Clause and a putatively controlling federal law."). Where a political subdivision is "legally and practically independent" from the state, the suit presents a genuine adversary contest. Rogers, 588 F.2d at 1065. Moreover, without deciding the issue, the Fourth Circuit has expressed doubts as to the validity of any such rule banning suits by cities against states. See City of Charleston v. Public Serv. Comm'n of W. Va., 57 F.3d 385, 390 (4th Cir.1995). By virtue of Virginia's broad grant of powers to localities, discussed below, I find that the City is sufficiently independent from state government to assert a Supremacy Clause challenge against it.

The defendants also contend that the City lacks the authority to bring suit under state law. Virginia law grants a locality the power to sue in its own name "in relation to all matters connected with its duties." Va.Code Ann. § 15.2-1404 (Michie 1997). Section 15.2-1102 gives a broad general grant of power to localities to exercise all powers

necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof ....

Va.Code Ann. § 15.2-1102 (Michie 1997). Furthermore, the statute specifies that these enumerated powers are not exclusive, but shall be construed to be in addition to a general grant of power. See id. Among the general powers granted to localities is the power to establish, maintain and operate "public utilities," Va.Code Ann. § 15.2-2109 (Michie 1997), which are defined as including "the furnishing of telephone service." Va.Code Ann. § 56-265.1 (Michie 1995). Therefore, I find that providing telecommunications services falls within the ambit of the City's duties, and the suit is therefore authorized under state law.

At oral argument, the defendants asserted that the City could not contend that providing telecommunications services was part of its duties because the statute at issue clearly prohibits providing telecommunications services. I reject this argument as circular. Under this reasoning, an unconstitutional statute would be immune to a Supremacy Clause challenge by affected localities. Because the majority of courts addressing the issue have recognized that a political subdivision may bring a Supremacy Clause challenge against a state, the defendants' argument is not persuasive. See Branson School Dist. RE-82, 161 F.3d at 630.

Finally, the defendants urge that the City lacks the "injury in fact" required to establish standing because the City has not exercised its ability to lease "dark fibers" under the exception to § 15.2-1500(B). Section 15.2-1500(C) permits a locality to lease dark fibers, defined as "fiber optic cable which is not lighted by lasers or other electronic equipment." Va. Code Ann. § 15.2-1500(C). The Virginia Code further specifies that in order to take advantage of this exception, a locality may only lease to a certificated local exchange telephone company or a non-profit organization "for use in serving their not-for-profit purposes." Va.Code Ann. § 56-484.7:1 (Michie Supp.2000). Before such a lease would be effective, however, it must be approved by the State Corporation Commission. Id. The defendants argue that because the City has not attempted to use this option, it has suffered no injury in fact.

I find that the City has indeed suffered an injury in fact despite the fact that it has not exercised the "dark fiber" option. The Telecommunications Act prohibits any state or local laws which "may prohibit or have the effect of prohibiting the ability of any entity" to provide telecommunications service. 47 U.S.C.A. § 253(a) (emphasis added). Section 15.2-1500(B) specifically prohibits a locality from providing telecommunications service. The "dark fiber" exception imposes severe limitations on the ability of the City to provide telecommunications service and certainly does not permit unbridled competition in the public marketplace. Thus, the challenged statute at least has "the effect of prohibiting" the City from providing telecommunications service to the public. The City would provide telecommunications service but for § 15.2-1500(B). Therefore, it has suffered an injury in fact caused by the defendant that is substantially likely to be remedied by the requested relief, thereby satisfying the requirements for standing in federal court. See Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000).

B

The next issue is whether the Commonwealth and Attorney General Earley are proper defendants under the doctrine of sovereign immunity. It is well-settled that by virtue of the Eleventh Amendment, a state cannot be sued unless it has waived immunity and consented to suit or Congress has abrogated sovereign immunity under § 5 of the Fourteenth Amendment. See Lynn v. West, 134 F.3d 582, 587 (4th Cir.1998). In this case, neither of these conditions has been met, and therefore the Commonwealth of...