The Police Jury Ass'n Of La. Inc v. State Of La., 2009 CA 1438.

• Court: Court of Appeal of Louisiana (US)
• Citation: 36 So.3d 942
• Docket Number: No. 2009 CA 1438.,2009 CA 1438.
• Parties: The POLICE JURY ASSOCIATION OF LOUISIANA, INC. and the Louisiana Municipal Associationv.STATE of Louisiana and Governor “Bobby” Jindal, In His Official Capacity, Through Attorney General, James D. Caldwell.
• Decision Date: 26 March 2010

36 So.3d 942

The POLICE JURY ASSOCIATION OF LOUISIANA, INC. and the Louisiana Municipal Association
v.
STATE of Louisiana and Governor “Bobby” Jindal, In His Official Capacity, Through Attorney General, James D. Caldwell.

No. 2009 CA 1438.

Court of Appeal of Louisiana,
First Circuit.

March 26, 2010.

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COPYRIGHT MATERIAL OMITTED

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Dannie P. Garrett, III, John A. Gallagher, Baton Rouge, LA, Attorneys for Plaintiffs-Appellants, Police Jury Assn. of Louisiana, Inc. and Louisiana Municipal Assn.

James D. “Buddy” Caldwell, Meridith J. Trahant, Baton Rouge, LA, Attorneys for Defendants-Appellees, State of Louisiana and Governor “Bobby” Jindal, in his Official Capacity, through Attorney General, James D. Caldwell.

Harry J. Philips, Jr., Baton Rouge, LA, Attorney for Intervenor/Appellee, BellSouth Telecommunications, Inc. d/b/a AT & T, Louisiana.

Robert L. Rieger, Jr., Richard B. Easterling, William D. Shea, Mary E. Taylor, Renee C. Crasto, Baton Rouge, LA, Michael D. Skinner, Lafayette, LA, Attorneys for Intervenor/Appellee, La. Cable & Telecommunications Association (LCTA).

Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.

CARTER, C.J.

This case poses a res nova legal question concerning the constitutionality of Act No. 433 of the 2008 Regular Session of the Louisiana Legislature (hereafter referred to as “Act 433”). Act 433 is commonly cited as the “Consumer Choice for Television Act” and is found in Chapter 10-A of Title 45 of the Louisiana Revised Statutes of 1950, comprising LSA-R.S. 45:1361-1378, including the specific provision at issue, LSA-R.S. 45.1365 B, that allows incumbent service providers the option to terminate existing cable or video service franchises issued by local governmental subdivisions. For the following reasons, we affirm the district court's declaration that Act 433 is constitutional in its entirety.

FACTS AND PROCEDURAL HISTORY

In 2008, the Louisiana Legislature enacted Act 433 to increase competition in the cable television and video services

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market, to offer consumers more choices, better prices and services, and to encourage economic development in Louisiana See LSA-R.S. 45:1362 A. Act 433 became effective on August 15, 2008. Prior to Act 433, cable service providers ¹ obtained franchises ² from local governmental subdivisions ³ for authority to use public rights-of-way in order to provide/transmit their cable and video television services to customers. The various franchise agreements set forth the rights and responsibilities of each cable service provider, including the obligation to pay local governmental subdivisions a mutually agreed-upon percentage of the gross revenues from sales of cable services, and in some instances, to provide programming or channels for public, educational, and government (“PEG”) access programming.

Pursuant to the police powers reserved to the state by Article VI, Section 9 of the Constitution of Louisiana, the legislature enacted Act 433 to permit any cable service provider to apply for a uniform, non-exclusive, and nondiscriminatory state franchise to provide cable or video television services to designated municipalities or parishes to be served, according to a streamlined franchise procedure with the secretary of state, as opposed to a local governmental subdivision franchise. See LSA-R.S. 45:1362 B, C, & D and LSA-R.S. 45:1364. Act 433 also gave incumbent service providers ⁴ the option to apply for the state franchise after terminating their existing franchises with local governmental subdivisions. LSA-R.S. 45:1365 B. However, Act 433 specifically mandated that the incumbent service providers would remain subject to and obligated for any indebtedness, liability, or obligation that is accrued, due and owing to a local governmental subdivision at the time the incumbent service provider terminates the existing franchise previously issued by the local governmental subdivision. LSA-R.S. 45:1365 B(2).⁵ Moreover, Act 433 requires

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all service providers, including incumbents, to pay local governmental subdivisions a franchise fee and PEG access support, to be uniformly applied to all holders of state-issued franchise certificates. See LSA-R.S. 45:1366 and 1370.

Two days before Act 433 became effective, two non-profit corporations, the Police Jury of Louisiana, Inc. and the Louisiana Municipal Association (hereafter collectively referred to as “plaintiffs”), filed a joint petition for declaratory judgment, preliminary injunction, and permanent injunction against the State of Louisiana and Governor “Bobby” Jindal, in his official capacity, through Attorney General James D. “Buddy” Caldwell (hereafter collectively referred to as “defendants”), seeking to have Act 433 declared unconstitutional, in whole or in part, and seeking to enjoin the application and enforcement of Act 433. A few days later, two separate petitions of intervention were filed by BellSouth Telecommunications, Inc. d/b/a AT & T Louisiana and the Louisiana Cable & Telecommunications Association (hereafter collectively referred to as “intervenors”). Defendants and intervenors were similarly aligned, maintaining the constitutionality of Act 433. On August 26, 2008, the district court issued an order combining and consolidating all of the matters for a trial on the merits, and further ordered that until such time as a ruling on the request for permanent injunction was made, the opt-in provision found in LSA-R.S. 45:1365 B was suspended and had no effect as to any franchise agreements in existence on or before August 15, 2008.

The matter went to a trial on the merits, and on January 15, 2009, the district court signed a judgment declaring the entirety of Act 433 to be constitutional, thus denying plaintiffs' demands for injunctive and declaratory relief. Additionally, the district court lifted the suspension placed on the opt-in provision found in LSA-R.S. 45:1365 B and contained in its August 26, 2008 order, thereby freeing incumbent service providers to exercise any and all rights granted under Act 433. Plaintiffs devolutively appeal, asserting that the district court erred in concluding that Act 433 is constitutional in its entirety.

LAW AND ANALYSIS

The legislative power of the state is vested in the legislature. LSA-Const. art. III, § 1. The Louisiana Supreme Court described the exercise of legislative power as follows:

[T]he legislature may enact any legislation that the state constitution does not prohibit. Thus, to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature to enact such a statute. Laws enacted by the legislature are presumed to be constitutional, and the constitutionality of statutes should be upheld whenever possible. Further, “it is

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not enough [for a person challenging a statute] to show that the constitutionality [of the statute] is fairly debatable, but, rather, it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute.”

Louisiana Public Facilities Authority v. Foster, 01-0009 (La.9/18/01), 795 So.2d 288, 298 (quoting Board of Directors of Louisiana Recovery Dist. v. All Taxpayers, Property Owners, and Citizens of the State of Louisiana, 529 So.2d 384, 388 (La.1988)) (citations omitted) (emphasis added).

In other words, if a statute is susceptible of two constructions, one of which would render it unconstitutional, or raise...