Time Warner Entertainment Advance/Newhouse Partnership v. Town of Landis
| Decision Date | 21 September 2012 |
| Docket Number | 10 CVS 1172 |
| Citation | 2012 NCBC 48 |
| Court | Superior Court of North Carolina |
| Parties | TIME WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP, Plaintiff, v. TOWN OF LANDIS, NORTH CAROLINA, Defendant. |
Brooks, Pierce, McLendon, Humphrey & Leonard, LLP by Reid L. Phillips; Hogan Lovells, LLP by Gardner F. Gillespie and Paul A. Werner, III for Plaintiff.
Poyner Spruill, LLP by David M. Barnes and Andrew H. Erteschik for Defendant.
The Bussian Law Firm, PLLC by John A. Bussian for the North Carolina Cable Telecommunications Association, Amicus Curiae.
Nelson Mullins Riley & Scarborough, LLP by Joseph W. Eason, Christopher J. Blake, and Phillip A. Harris for the North Carolina Association of Electric Cooperatives, Amicus Curiae.
ElectriCities of North Carolina, Inc. by W. Mark Griffith, Amicus Curiae.
{1} THIS MATTER is before the Court as a "dispute" between Plaintiff Time Warner Entertainment Advance/Newhouse Partnership ("TWEAN") and Defendant Town of Landis, North Carolina ("Landis, " or the "Town") concerning rates, terms, and conditions for attachment of TWEAN communications infrastructure to Landis' municipally-owned utility poles, pursuant to North Carolina General Statutes section 62-350 (the "Statute").
{2} Having considered the evidence presented by the parties at trial; the parties' pre- and post-trial briefings; the briefings of amici; and the arguments and contentions of counsel, the Court determines that the "issues in dispute" advanced by TWEAN regarding the specific terms of Landis' proposed new pole attachment agreement fail to confer subject matter jurisdiction upon the Court. Accordingly, the Court hereby DISMISSES Plaintiff's action without prejudice.
{3} TWEAN filed its Verified Complaint on April 19, 2010, to resolve a dispute with Landis concerning the rates, terms, and conditions of TWEAN's attachment of its telecommunications transmission cables to utility poles owned by Landis. TWEAN alleges that: (1) Landis refused to negotiate in good faith the terms of a new pole attachment agreement between the parties; (2) Landis' proposed attachment terms violate the Statute's nondiscrimination requirement; and (3) the specific terms of Landis' proposed new attachment agreement are "unjust and unreasonable."[1]
{4} Pursuant to N.C. Gen Stat. § 62-350(c), TWEAN identifies in its Complaint three specific "issues in dispute, " and asks the Court to determine whether: (a) Defendant's proposed rental rate of $18.00 per attachment is an unreasonable and unjust rate; (b) Defendant's proposal to charge the Plaintiff the $18.00 rental rate separately for "any one cable that is physically attached to a pole by means of a through bolt" is unreasonable and unjust; and (c) Defendant's proposed provisions and fines concerning non-conforming attachments set forth in Section 6(e) of its proposed new contract are unreasonable and discriminatory terms.
{5} Consistent with its "issues in dispute, " TWEAN prayed for the following specific relief:
(V. Compl. 15.)[2]
{6} The case was designated as a mandatory complex business case on April 21, 2010, and assigned to this Court on April 22, 2010.
{7} Landis filed its Answer on June 4, 2010, praying, in part, that the Court:
(Answer 8.)
{8} On June 22, 2010, the North Carolina Association of Electric Cooperatives ("NCAEC") moved to intervene in this action pursuant to Rule 24 of the North Carolina Rules of Civil Procedure. The Court denied NCAEC's Motion to Intervene on August 17, 2010, instead permitting NCAEC to submit briefs as amicus curiae.
{9} ElectriCities of North Carolina, Inc. ("ElectriCities") moved for permission to participate in the case as amicus curiae on August 25, 2010, which the Court granted on September 21, 2010.
{10} The North Carolina Cable Telecommunications Association ("NCCTA") moved for permission to participate in the case as amicus curiae on January 26, 2011, which the Court granted on February 15, 2011.
{11} On December 20, 2010, Landis filed its Motion for Partial Summary Judgment as to TWEAN's claims for failure to negotiate and for discrimination. TWEAN filed its response on January 27, 2011; Landis filed its reply brief on February 9, 2011; and the Court heard oral arguments on February 17, 2011.
{12} By its June 30, 2011, Order and Opinion, the Court granted Landis' Motion for Partial Summary Judgment as to TWEAN's claim for failure to negotiate, and denied the Motion as to the discrimination claim. See Time Warner Entm't Advance/Newhouse P'ship v. Town of Landis, 2011 NCBC 19 ¶ 66 (N.C. Sup. Ct. June 30, 2011), http://www.ncbusinesscourt.net/ opinions/2011_NCBC _19.pdf (granting defendant's motion for partial summary judgment as to plaintiff's claim of failure to negotiate, and denying the motion as to plaintiff's claim of discrimination).
{13} The Court conducted a bench trial on TWEAN's discrimination claim and the remaining "issues in dispute" from July 18 to July 21, 2011. At the close of TWEAN's evidence, the Court denied Landis' Motion for Directed Verdict regarding the "issues in dispute, " but reserved its ruling as to the discrimination claim. (Trial Tr. 494, 634.)[3] At the close of all evidence, the Court again denied Landis' Motion for Directed Verdict as to the "issues in dispute" and TWEAN withdrew its discrimination claim, leaving only the disputed terms of Landis' proposed attachment agreement for the Court to resolve.
{14} On June 19, 2012, the Court notified the parties of the Court's concerns about two questions of law: namely, the justiciability of the three "issues in dispute, " and the constitutionality of the Statute with respect to certain requirements the Statute imposed upon the Court. The parties, and amici curiae NCCTA and NCAEC, briefed the Court on these two matters, [4] and the Court conducted a hearing on July 17, 2012, during which the parties and participating amici responded to specific questions from the Court and presented additional arguments.
{15} The Court makes findings of fact pertinent to the Court's determination of subject matter jurisdiction over the claims remaining for adjudication.
{16} Landis is a North Carolina municipal corporation located in Rowan County. At all times relevant to this action, Landis owned and operated a municipal utility that provides electric service to residents within, and surrounding, the Town limits. The physical plant supporting the Town's utility service includes an extensive network of utility poles. (Trial Tr. 137.)
{17} TWEAN is successor in interest to Vision Cable Communications, Inc. ("Vision Cable"), and provides cable television and broadband services within the Town. (Trial Tr. 56–57, 63, 65.) TWEAN's business model, and that of its predecessor Vision Cable, relies upon access to utility poles, including poles owned by Landis, for delivery of services to customers. (Trial Tr. 63–65.) Vision Cable first introduced its cable television services to Landis in 1979. (Trial Tr. 63.) Vision Cable and Landis entered into a written pole attachment agreement on June 16, 1984 (the "1984 Agreement, " or "Agreement"). (Pl.'s Trial Ex. 8.)
{18} Under the terms of the 1984 Agreement, Landis granted a license to Vision Cable to attach transmission cables to Landis' utility poles at a rate of $3.00 per pole per year, with an additional charge of $1.00 per year for each metered power supply attachment, to be paid semi-annually. (Pl.'s Trial Ex. 8 ¶ 8.) Each Vision Cable pole attachment was to be subject to Landis' permitting requirements, and was limited to one cable attachment per pole, with attachment approval in the Town's sole discretion. (Pl.'s Trial Ex. 8 ¶ 1a.) Vision Cable was to place permanent...
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