W. Radio Servs. Co. v. Verizon Wireless (Vaw), LLC

• Decision Date: 08 May 2019
• Docket Number: A164562
• Citation: 297 Or.App. 446,442 P.3d 218
• Parties: WESTERN RADIO SERVICES CO., an Oregon corporation, Plaintiff-Appellant, v. VERIZON WIRELESS (VAW), LLC, dba Verizon Wireless, a Delaware limited liability company and Midstate Electric Cooperative, Inc., Defendants-Respondents.
• Court: Oregon Court of Appeals

297 Or.App. 446
442 P.3d 218

WESTERN RADIO SERVICES CO., an Oregon corporation, Plaintiff-Appellant,
v.
VERIZON WIRELESS (VAW), LLC, dba Verizon Wireless, a Delaware limited liability company and Midstate Electric Cooperative, Inc., Defendants-Respondents.

A164562

Court of Appeals of Oregon.

Argued and submitted January 9, 2018.
May 8, 2019

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Derek D. Green, Portland, argued the cause for respondent Verizon Wireless (VAW), LLC. Also on the brief was Davis Wright Tremaine LLP.

Matthew J. Kalmanson, Portland, argued the cause for respondent Midstate Electric Cooperative, Inc. Also on the brief were Ruth C. Rocker and Hart Wagner LLP.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

297 Or.App. 448

Plaintiff Western Radio Services appeals from a limited judgment dismissing its action against defendants Verizon Wireless and Midstate Electric Cooperative, Inc., assigning error to the trial court’s granting of defendants' motion for summary judgment. We review the trial court’s ruling for whether there are genuine issues of material fact that preclude summary judgment and whether the trial court correctly ruled that defendants are entitled to judgment as a matter of law. ORCP 47 C. We conclude that the trial court did not err in its rulings. We further conclude, however, that the trial court’s dismissal of plaintiff’s declaratory judgment claims was not the proper disposition and that the judgment must be vacated and remanded for entry of judgment that includes a declaration of the rights of the parties. Bell v. City of Hood River , 283 Or. App. 13, 20, 388 P.3d 1128 (2016)

The relevant facts are undisputed. Defendant Midstate is a private, nonprofit electric cooperative that provides electricity to its members in an "exclusively serviced territory." Plaintiff is a wireless telecommunications carrier and is a member of Midstate.

Under ORS 758.450, a utility service may apply with the Public Utility Commission (PUC) for the allocation of exclusively serviced territory. ORS 758.450(1) ; see also ORS 758.735 (describing application process). If the PUC approves an application, no other person may offer, construct, or extend utility service in or into the allocated territory. ORS 758.450(2).

In 1962, the PUC approved Midstate’s application for allocation of an exclusively serviced territory in Deschutes, Klamath, Lake, and Lane Counties. The United States Forest

442 P.3d 220

Service (USFS) owns land within Midstate’s exclusively serviced territory, including the land known as Sugar Pine Butte, which is on the east side of Highway 97 outside of Sunriver, Oregon, and northwest of Paulina Lake and East Lake.

In 1989, plaintiff became a Midstate member and agreed to be bound by Midstate’s policies, including those

297 Or.App. 449

that "may be adopted from time to time." Among Midstate’s policies is a "Line Extension Policy" adopted in 1990 providing that a line extension is "[a]ny proposed branch or continuation of a [Midstate] distribution line" within Midstate’s service area. Under Midstate’s line extension policy, a customer requesting a line extension must bear the costs of extending the line.

In April 1990, plaintiff obtained a special use permit from USFS to build a 60-foot radio tower and equipment building at Sugar Pine Butte. Initially, plaintiff’s tower was solar and battery powered.

In 1992, plaintiff asked Midstate to provide power to plaintiff’s radio tower on Sugar Pine Butte, which would involve extending a buried cable approximately 100 miles from Midstate’s existing power distribution line on Highway 97. Midstate estimated that the cost for construction of the requested line extension would be $137,865. Midstate agreed to expand its power distribution infrastructure through a buried power line if plaintiff agreed to provide trenching, obtain some permitting, and pay the remaining costs as "contribution in aid of construction."

Plaintiff agreed to provide trenching and to obtain permitting, for which Midstate credited plaintiff $60,337 against its contribution in aid of construction. In a January 1992 letter, Midstate offered plaintiff two options for payment of plaintiff’s remaining "contribution in aid of construction": Option One was a financing option and Option Two required full up-front payment. More specifically, Option One required an initial payment of $38,760 and annual payments of $4,845 for 10 years, for a total cost to plaintiff of $87,210. Option One would have required plaintiff to execute an "Electric Service Agreement" that included the statement that "Western agrees to pay for the cost of such installation of electrical line and facilities on Midstate’s system which shall at all times be owned by Midstate[.]"¹ Option

297 Or.App. 450

Two required full up-front payment of plaintiff’s "contribution in aid of construction" of $74,639 and no financing or contract.

Plaintiff chose Option Two and signed a "letter of agreement" that described the terms. Unlike the Electric Service Agreement, the letter made no mention of ownership of the electrical line and facilities. Midstate obtained a special use permit from USFS to construct, reconstruct, maintain, and operate power lines on USFS’s Sugar Pine Butte site, as well as a nontransferable right to distribute power. Midstate’s USFS permit provided that it would expire if Midstate ceased to be the owner of the equipment,...