Gulf Power Co. v. U.S.

• Decision Date: 06 March 1998
• Docket Number: No. 3-96-CV-381/LAC.,3-96-CV-381/LAC.
• Parties: GULF POWER COMPANY, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

998 F.Supp. 1386

GULF POWER COMPANY, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.

No. 3-96-CV-381/LAC.

United States District Court, N.D. Florida, Pensacola Division.

March 6, 1998.

Ralph Alan Peterson, Beggs & Lane, Pensacola, FL, John Russell Campbell, S. Allen Baker, Balch & Bingham, Birmingham, AL, Karl R. Moor, Suzanne Alldredge, Balch & Bingham, Washington, DC, Richard E. Jones, Hunton & Williams, Raleigh, NC, for Plaintiffs.

Theodore C. Hirt, U.S. Department of Justice, Civil Division, Washington, DC, Brian G. Kennedy, U.S. Dept of Justice, Civil Div, Washington, DC, Richard J. Metzger, Assoc. for Local Telecommunications Serv., Washington, DC, for Defendants.

Robert G. Scott, Jr, Cole, Raywid & Braverman, Washington, DC, Anthony C. Epstein, Jenner & Block, Washington, DC, Michael Eugene Kinney, William B. Graham, Bateman & Graham, PA, Tallahassee, FL, for National Cable, amicus, Cable Telecommunications Association, amicus, Alabama Cable Telecommunications Association, amicus, Florida Cable Telecommunications Association, amicus, Cable Television Association of Georgia, amicus, Cable Telecommunications Association of Maryland, Delaware, and District of Columbia, amicus, Mississippi Cable Television Association, amicus, Ohio Cable Telecommunications Association, amicus Texas Cable & Telecommunications Association, amicus.

SUMMARY JUDGMENT

COLLIER, District Judge.

Pending before the Court is Plaintiffs' motion for summary judgment and documents in support thereof (docs.38-41). Also before the Court are both Defendants' and Intervenors' motions for summary judgment (docs.46, 54) and their supporting memoranda (docs.47, 55) and evidentiary materials (docs.49, 56). All parties have reply memoranda in response (docs.59, 65, 66, 68). Furthermore, Amici curiae have filed with the Court memoranda in support of Defendants' and opposition to Plaintiffs' motions for summary judgment (doc. 50) as well as supporting documentation (doc. 51). The Court has taken the motions for summary judgment under advisement (doc. 45) and, with the aid of oral arguments, is now prepared to rule on the pending motions. For the reasons stated below, Plaintiffs' motion for summary judgment is DENIED. Defendants' and Intervenors' motions for summary judgment are GRANTED.

I. STATEMENT OF THE CASE

A. Background

As enacted in 1978, the Pole Attachment Act ("Act") empowered the Federal Communications Commission ("FCC"), in the absence of parallel state regulation, to determine "just and reasonable" rates that utility companies could charge cable television systems for using utility poles as a physical medium for stringing television cable. 47 U.S.C. § 224(b)(1) (1991). The Act also provided for a range of reasonableness within which the FCC could set rates. Id. at § 224(d)(1). This range defined the minimum rate as the marginal cost of providing pole attachments, while the maximum rate a utility could charge was the fully allocated cost of construction and operation of each pole to which the television cable was attached. Id.

Recognizing the benefits and need for competition in the rapidly expanding telecommunications industry, Congress passed the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996),¹ which made several significant amendments to the Pole Attachment Act. The Act now provides that "[a] utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it." 47 U.S.C. § 224(f)(1) (1991 & Supp. 1997). A utility who owns or controls poles, conduits, or right-of-way and uses them in whole or in part for wire communications may only deny access on a nondiscriminatory basis where there is "insufficient capacity and for reasons of safety, reliability and generally applicable engineering services." Id. at §§ 224(a)(1) & (f)(2).

Significant in the amendments and serving as the primary issue now before the Court, is this "mandatory access" requirement which imposes an obligation on qualifying utilities to provide nondiscriminatory access to their poles and conduits. This mandate was not part of the Act as enacted in 1978 and was added as a means "to remedy the inequity for pole attachments among providers of telecommunications services." H.R.REP. No. 104-204, pt. 1, at 92 (1995). In its promulgation of the "mandatory access" requirement, however, Congress did not abandon the rate formula established in 1978.² Indeed, the Act still empowers the FCC to determine "just and reasonable" rates pursuant to § 224(d)(1). It is this legislative delegation of power to the FCC which serves as the second principal issue before the Court today.

The Plaintiffs³ ("Utilities") are all power companies which fall under the definition of a utility as contemplated by the Act, 47 U.S.C § 224(a)(1) (Supp.1997), and each owns or controls poles, ducts, conduits, and private right-of-ways in the United States (doc. 41). Although their primary business is the generation, transmission, and distribution of electricity, the Utilities also use the poles, conduits, ducts, and right-of-ways for wire communications (id.). The Utilities further acknowledge that they have access to and facilities located on public rights-of-way for which they have been given condemnation rights and have in the past frequently negotiated and entered into private pole attachment agreements with cable companies (id.).

B. Procedural History

The Utilities filed the present action in this Court seeking both declaratory and injunctive relief (doc. 1: ¶ 2). Pursuant to 28 U.S.C. § 2201, the Utilities seek a declaration that the "mandatory access" provision of the Act, 47 U.S.C. § 224(f), is unconstitutional on its face and without force of law (doc. 1). The Utilities also seek to permanently enjoin and restrain the United States and the FCC ("Defendants") from enforcing that provision against them (id.). The Utilities argue that the provision is unconstitutional, as the Act's mandate to provide access in a nondiscriminatory manner constitutes a taking without just compensation as required by the Fifth Amendment of the Constitution of the United States. U.S. CONST. AMEND. V.

The Association for Local Telecommunications Services ("ALTS") and American Communications Services, Inc. ("ACSI")⁴ intervened as party defendants ("Intervenors"), asserting interests in the litigation which could not otherwise be adequately protected by the United States and the FCC (docs.8, 26, 27). Furthermore, the Court has permitted several national and state cable television associations⁵ to participate as Amici curiae in the present action (doc. 18). These Amici represent the owners and operators of over 11,000 cable systems throughout the United States and have a substantial interest in the outcome of the instant case (doc. 17). They seek to inform and assist the Court from the perspective of the cable industry and its prior experience in negotiating access to the poles, ducts, and conduits at issue here (doc. 17).

The Utilities, Defendants, and Intervenors have all moved for summary judgment (docs.38, 46, 54) and filed memoranda in support of their respective motions (docs.40, 47, 55).⁶ The parties have also submitted statements of facts pertinent to the issues before the Court (doc. 39, 49, 56). Moreover, the Utilities have filed affidavits in support of their motion (doc. 41), to which Defendants have responded (doc. 48).

Amici also filed a memorandum in support of Defendants' and Intervenors' motions for summary judgment which likewise served as opposition to the Utilities' motion (doc. 50). They additionally filed a statement of facts (doc. 51) referencing the affidavit of Scott Weber and exhibits filed therewith (doc. 50, attch. A & exh. 1); however, those materials have been stricken from the record, (doc. 75). The Court did state in its order granting the motion to strike that it would still consider Amici's memorandum and all of the legal, legislative, and administrative citations made therein, all of which are now properly before the Court (id.).

The Court has taken summary judgment under advisement (doc. 45), heard oral argument from the parties, and is now prepared to rule on the pending motions. After considering all materials submitted in support of and opposition to the motions for summary judgment, Plaintiffs' motion for summary judgment (doc. 38) is DENIED. For the reasons stated below, Defendants' and Intervenors' motions for summary judgment (docs.46, 54) are GRANTED.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Standard

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show that no genuine issue of material fact exists and that the party moving is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Id.

In the instant case, no genuine issues of material fact exist precluding summary judgment for any party. The language of the Act is clear and the parties maintain that the constitutionality considerations at issue are properly resolved at the summary judgment stage. Furthermore, where a facial challenge to a statute is at issue, it is not whether the statute is constitutional as to the specific set of circumstances before the court, but whether that statute would be facially invalid in all or at least most cases.⁷

B. Discussion

In challenging the constitutionality of the Act, Plaintiffs maintain that the non-discriminatory access...