Tcg Detroit v. City of Dearborn, 96-CV-74338-DT.
| Decision Date | 28 August 1997 |
| Docket Number | No. 96-CV-74338-DT.,96-CV-74338-DT. |
| Citation | 977 F.Supp. 836 |
| Parties | TCG DETROIT, Plaintiff, v. CITY OF DEARBORN, Defendant and Third-Party Plaintiff, v. AMERITECH MICHIGAN, Third-Party Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
This matter is before the Court on defendant City of Dearborn's motion to dismiss Count II of plaintiff TCG Detroit's complaint and to strike certain paragraphs from the complaint. Plaintiff has filed a response, and defendant has replied. The Court finds that the facts and legal arguments are adequately presented in the parties' briefs and the decisional process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. Local R. 7.1(e)(2), it is hereby ORDERED that the motions be resolved on the briefs submitted. For the reasons set forth below, defendant's motion is denied in part and granted in part.
According to its complaint, plaintiff, TCG Detroit, is a telecommunications provider licensed to provide basic local telecommunications service in certain areas of Southeastern Michigan, including the City of Dearborn. Plaintiff plans to construct, install and maintain facilities within the city limits of Dearborn. These facilities are to be constructed in electrical conduit in Detroit Edison's right-of-way.
According to the complaint, the City of Dearborn is requiring that TCG obtain the City's approval to enter upon Dearborn's rights-of-way, easements, and public places before constructing and installing their facilities. Plaintiff also alleges that the City of Dearborn is requiring, pursuant to Dearborn's Telecommunications Systems Regulatory Ordinance, various fees, agreements, and permits before allowing the plaintiff to construct the necessary facilities. Plaintiff alleges that Dearborn's regulatory ordinance, and the way it is being applied to them, is in violation of the Federal Telecommunications Act of 1996.
Specifically, plaintiff alleges that the City of Dearborn's requirements are in violation of 47 U.S.C. §§ 253(a) (Count I) and 253(c) (Count II). It is section 253(c) that is the subject of the instant motion. Defendant City of Dearborn contends that 253(c) does not provide for a private cause of action and moves to dismiss Count II pursuant to Fed. R.Civ.P. 12(b)(6).
Additionally, defendant City of Dearborn seeks to have stricken certain paragraphs from the complaint as they are irrelevant and immaterial pursuant to Fed.R.Civ.P. 12(f). In a previous order, the Court dismissed the state law count (Count IV) of plaintiff's original complaint. Thereafter, plaintiff filed an amended complaint in which the factual allegations from the dismissed Count IV were transferred and incorporated to Count II of the first amended complaint. Although factual allegations were transferred, plaintiff insists that there are no state law claims for relief in the first amended complaint.
A motion brought pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of the plaintiff's complaint. The Court must accept as true all factual allegations in the complaint, and any ambiguities must be resolved in plaintiff's favor. Jackson v. Richards Medical Co., 961 F.2d 575, 577 (6th Cir.1992). A district court may properly grant a motion to dismiss when no set of facts exists which would allow the plaintiff to recover. Carter by Carter v. Cornwell, 983 F.2d 52, 54 (6th Cir.1993).
In Count II of its complaint, plaintiff alleges that the City of Dearborn's ordinance, and the way it's applied, violates 47 U.S.C. § 253(c) because another telecommunications provider currently providing service is not subject to the same fees, costs, and requirements being imposed upon it. The statute at issue, 47 U.S.C. § 253, provides in relevant part that:
(a) In general
No State or local statute or regulation, or other State or local legal requirement, may prohibit, or have the effect or prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
(b) State regulatory authority
Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this section, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.
(c) State and local government authority
Nothing in this section affects the authority of a state or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of the public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.
(d) Preemption
If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or, legal requirement to the extent necessary to correct such violation or inconsistency.
* * * * * *
The language of section 253(c) does not explicitly create a private cause of action for a telecommunications provider that alleges it is being discriminated against. The defendant argues that 253(c) does not create a right of action on plaintiff's behalf, but, rather, only provides a "safe harbor for local governments for actions that might otherwise constitute a barrier to entry proscribed under Subsection (a)." (Defendant's brief at p. 4). Defendant bases their position on the plain language of the statute and on the recent opinion of GST Tucson Lightwave, Inc. v. City of Tucson, 950 F.Supp. 968 (D.Ariz.1996), which held that there is not available an implied private right of action under section 253(c).
Plaintiff argues that a cause of action is implied in section 253(c) and that an examination of the relevant factors, including the legislative history, makes it clear that Congress intended to include a private right of action. The Court agrees.
Although section 253(c) does not make explicit a private right of action, such a right may be implied. The Supreme Court has set forth the factors relevant in determining whether a private remedy is implicit in a statute not expressly providing one. The factors are:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff. And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975).
In applying the above factors from Cort to 47 U.S.C. § 253, it is clear to the Court that there is implied a private right of action.
First, plaintiff is one of the class for whose benefit the statute was enacted. Plaintiff is a telecommunications provider. The statute is entitled "removal of barriers to entry" and its purpose, as well as the general legislative scheme of the Act, is to stimulate competition among telecommunications providers. Accordingly plaintiff is one of the class for whose benefit the act was passed.
Second, the legislative history evinces an intent by Congress to create a cause of action under 253(c). The comments made during the debate of the Stupak-Barton amendment, which became the enacted 253(c), indicate Congress's concern with allowing the states to retain control over their local-rights of way. 141 CONG. REC. H 8460-61 (August 4, 1995). The comments also clearly indicate Congress' desire that local governments retain their freedom to set fair and reasonable rates for a provider's use of their right-of-ways. Id. However, those comments, and the exclusion of Representative Dan Schaefer's `parity provision'1, do not eviscerate the explicit language of 253(c) that local governments, although retaining the right to manage their public right-of-ways, must do so fairly and "on a competitively neutral and non-discriminatory basis." 47 U.S.C. § 253(c).
Further support for recognizing a cause of action under 253(c) is found in 253(d). Section 253(d) provides for the preemption of state statutes or regulations that violate the provisions of 253(a) or (b). However, 253(d) does not provide for preemption of 253(c). Thus, the implication is that any violation of 253(c) could not preempted but rather would have to been challenged locally. This is supported by the Senate debate on 253(d), which was ultimately adopted and passed by both the House and Senate. H.R. CONF. REP. No. 104458, at 127, reprinted in 1996 U.S.C.C.A.N. 138.
Senator Gorton, in discussing his amendment to the preemption section 253(d), stated that:
There is no preemption ... for subsection (c) which is entitled, "Local Government...
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