Jones Intercable of San Diego, Inc. v. City of Chula Vista, 93-56397

• Decision Date: 02 April 1996
• Docket Number: No. 93-56397,93-56397
• Citation: 80 F.3d 320
• Parties: 96 Cal. Daily Op. Serv. 2261, 96 Daily Journal D.A.R. 3737 JONES INTERCABLE OF SAN DIEGO, INC., Plaintiff-Appellant, v. CITY OF CHULA VISTA; City Council of Chula Vista; Cliff Swanson, as City Engineer; John Lippitt, as Director of Public Works, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 320

80 F.3d 320

96 Cal. Daily Op. Serv. 2261, 96 Daily Journal

D.A.R. 3737

JONES INTERCABLE OF SAN DIEGO, INC., Plaintiff-Appellant, v. CITY OF CHULA VISTA; City Council of Chula Vista; Cliff Swanson, as City Engineer; John Lippitt, as Director of Public Works, Defendants-Appellees.

No. 93-56397.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 4, 1995.

Opinion Filed Oct. 5, 1995.

Opinion Withdrawn April 2, 1996.

Decided April 2, 1996.

Terry S. Bienstock, Philip J. Kantor, Bienstock & Clark, Miami, Florida; Jerold H. Goldberg, McDonald, Hecht & Solberg, San Diego, California, for plaintiff-appellant.

Cindy A. Brand, Deborah M. Kornheiser, Howard J. Silldorf, Silldorf, Burdman, Dunignan & Eisenberg, San Diego, California; William M. Marticorena, Rutan & Tucker, Costa Mesa, California; Bruce M. Boogaard, Office of the City Attorney, Chula Vista, California; for defendants-appellees.

Appeal from the United States District Court for the Southern District of California, No. CV-91-01766-JNK; Judith N. Keep, Chief Judge, Presiding.

Before: D.W. NELSON and CANBY, Circuit Judges, and TANNER, ^* District Judge.

ORDER

The opinion filed Oct. 5, 1995, is withdrawn.

OPINION

CANBY, Circuit Judge:

I.

Jones Intercable of San Diego, Inc., brought this action in district court against the City of Chula Vista. Jones alleged that the City had denied Jones' constitutional and statutory rights when it refused to permit Jones to operate a cable television system in areas newly annexed by the City. The district court granted summary judgment to the City, and Jones appeals. We affirm the judgment of the district court with regard to all claims except the claim of taking of property without just compensation. That claim we order dismissed as unripe.

II.

Jones operates cable television systems. In 1987, with the approval of the County of San Diego, Jones accepted assignment of a twenty-year license from the County to construct and operate a cable television system within the County. Pursuant to encroachment permits it received from the County, Jones proceeded with the construction of cable infrastructure upon public rights-of-way of the County. The cable infrastructure consists of a "head-end" facility equipped with a satellite dish that receives satellite-delivered television signals. It also includes a main cable trunk line and additional cable lines with which Jones delivers these television signals to its subscribers.

Two years later, the City annexed some previously unincorporated portions of the County. Jones had already installed cable infrastructure in parts of these areas. As provided by section 2(e) of Jones' license with the County, the County's rights under the license inured to the benefit of the City for purposes of the newly annexed areas. The City required Jones to apply for a city-wide franchise and to serve a broader area in order to operate its cable system within the City. Jones submitted an application for a franchise to the City, but later withdrew its application. Jones then applied to the City for encroachment and construction permits to continue laying cable in the newly annexed areas. The City denied these applications.

Jones then filed a suit in San Diego Superior Court that included several causes of action and requested a preliminary injunction allowing Jones to install coaxial cable, conduit and related equipment in trenches that were temporarily open in newly annexed portions of the City. The Superior Court granted the preliminary injunction so that Jones could install the equipment before the trenches were closed. Although Jones was allowed to continue installing cable infrastructure in open trenches, the injunction did not allow Jones to service cable customers or enter into contracts to supply cable service. The superior court subsequently dismissed the state action on the ground that Jones failed to exhaust its administrative remedies, and Jones appealed. ¹

While its state appeal was pending, Jones filed the present action in federal district court, alleging that the City had violated several of Jones' federal statutory and constitutional rights. The district court also granted Jones a preliminary injunction allowing it to lay cable in open trenches in the City. The City moved for summary judgment, arguing among other things that Jones was precluded from recovering damages from the City by 47 U.S.C. § 555a(a), which limits remedies against governmental entities regulating cable service to injunctive and declaratory relief. In response, Jones argued that, if section 555a(a) applied, it resulted in an unconstitutional taking of the cable infrastructure Jones had already installed in the newly incorporated sections of the City. Jones also raised other constitutional challenges to section 555a(a). After rejecting each of Jones' constitutional challenges to section 555a(a), the court concluded that, because Jones recently had sold the equipment necessary to service the City and no longer desired to serve the City, its claim for declaratory and injunctive relief was moot. The court granted summary judgment to the City.

Jones appeals the district court's grant of summary judgment to the City on several grounds. ²

III.

A. Jones' Takings Claim is not Ripe

The district court rejected Jones' taking claim on the ground that injunctive and declaratory relief remained available. It also observed that much of the infrastructure in issue had been installed by Jones under preliminary injunctions sought by Jones at a time when its cable rights were contested. The district court also pointed out that Jones' property was not deprived of all value, because Jones could, and did, sell its infrastructure.

There is a threshold issue, however, that prevents us from addressing the merits of the district court's ruling. Whether Jones' takings claim is ripe for review is a question of law affecting our subject matter jurisdiction. Del Monte Dunes v. City of Monterey, 920 F.2d 1496, 1500 (9th Cir.1990). We review de novo the district court's implicit decision that Jones' claim is ripe for review. Id.

In order for Jones' claim that the City took its property without just compensation to be ripe for federal judicial review, Jones was required first to seek compensation through California's inverse condemnation proceedings. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir.1989), cert. denied sub nom., Doody v. Sinaloa Lake Owners Ass'n, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990) (citing Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)). Although Jones attempted to assert a late inverse condemnation claim in state court for the taking of its right to provide services, it never presented a claim for the taking of its infrastructure by rendering it useless. More important, Jones' state court action contesting the validity of Chula Vista's regulatory requirement was still pending when it brought this action, and apparently remains pending to this day. A regulatory taking claim is not ripe until the decision of the regulating authority has become final. Williamson County, 473 U.S. at 186, 105 S.Ct. at 3116. We conclude that Jones' taking claim is premature, and we cannot entertain it. Id. Having disposed of Jones' taking claim on ripeness grounds, we do not decide whether the district court's analysis of the merits of the claim was correct.

B. Section 555a is Applicable to this Action

Jones asserted claims for damages in addition to those for taking of its property; it also sought damages and attorneys' fees for violations of the First, Fifth and Fourteenth Amendments and the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. Because damages are precluded if section 555a(a) applies and is valid, Jones' remaining contentions are addressed to that statute. Section 555a(a) provides:

In any court proceeding pending on or initiated after October 5, 1992, involving any claim against a franchising authority or other governmental entity ... arising from the regulation of cable service or from a decision of approval or disapproval with respect to a grant, renewal, transfer, or amendment of a franchise, any relief, to the extent such relief is required by any other provision of Federal, State, or local law, shall be limited to injunctive relief and declaratory relief.

47 U.S.C. § 555a(a).

Jones first argues that section 555a(a) does not apply to its claim because the claim does not arise out of the City's "regulation of cable service" within the meaning of the statute. This contention is utterly without merit. It is difficult to see what the City was doing, if not regulating, when it precluded Jones from installing more cable infrastructure and from servicing customers unless Jones first obtained a city-wide franchise. ³ The fact that Jones challenges the City's power to regulate does not mean that Jones' action does not arise from the regulation of cable service. Whether or not the City's application of its permitting and franchising regulations to Jones was fair or valid is a separate question from whether or not application of these regulations falls within section 555a(a)'s definition of "regulation." The clear answer to the latter question is that it does. The district court did not err in concluding that section 555a(a) was applicable.

C. Section 555a(a) Does Not Violate Jones' First Amendment Rights

Jones raises very broad First Amendment and equal protection issues in its attacks upon section 555a(a). It is important to keep in mind, however, exactly what Jones is trying to do. Jones had a franchise to serve unincorporated areas of the County. That franchise required Jones to operate its system "in strict compliance with all laws, ordinances, and regulations of the county, the state, and the federal government." The franchise also provided that if any area served...