BellSouth Telecommunications, Inc. v. Town of Palm Beach

BELLSOUTH TELECOMMUNICATIONS, INC., Plaintiff-Counter-Defendant-Appellee-Cross-
Appellant,
v.
TOWN OF PALM BEACH, a Florida municipal corporation, Defendant-Counter-Claimant-Appellant-
Cross-Appellee.
Bellsouth Telecommunications, Inc., Plaintiff-Counter-Defendant-Appellee-Cross-Appellant,
v.
Coral Springs, City Of, Defendant-Counter-Claimant-Appellant-Cross-Appellee.
Nos. 99-14272, 99-14292.
United States Court of Appeals,
Eleventh Circuit.
May 25, 2001.
Appeals from the United States District Court for the Southern District of Florida. (No. 97-07010-CV-WPD),
William P. Dimitrouleas, Judge.
Before BIRCH and BLACK, Circuit Judges, and NESBITT*, District Judge.**
BIRCH, Circuit Judge:
This appeal requires us, as a matter of first impression in this circuit, to answer two questions
pertaining to § 253 of the Telecommunications Act of 1996:(1) what is the preemptive scope of § 253; and
(2) who may seek enforcement of the provisions of § 253? Because we disagree with the district court's
interpretation and application of § 253, and also, in part, because amendments were made to relevant state
laws after the district court rendered judgment, we AFFIRM the district court's judgment in part, REVERSE
in part, and REMAND to the district court for further proceedings.
I. BACKGROUND
In the preamble to the Telecommunications Act of 19961 ("the Act"), Congress announced that it was
passing "[a]n Act to promote competition and reduce regulation in order to secure lower prices and higher
quality services for American telecommunications consumers and encourage the rapid deployment of new
*
Honorable Lenore C. Nesbitt, U.S. Senior District Judge for the Southern District of Florida, sitting
by designation.
**
Judge Nesbitt did not participate in this decision. This decision is rendered by a quorum. 28 U.S.C.
§ 46(d).
1
Pub.L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C.).
telecommunications technologies." 110 Stat. at 56. The provisions of the Act were intended to supplement
and amend the statutory framework established in the Communications Act of 1934, 47 U.S.C. § 151, et seq.,
and the end result has been described as a "fundamental[ ] restructur[ing of the] local telephone markets."
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 726, 142 L.Ed.2d 835 (1999). The City
of Coral Springs and the Town of Palm Beach (collectively, "the Cities") perceived that the Act mandated
changes in the way they regulated telecommunications services providers; in response, Coral Springs passed
ordinance 97-114 and Palm Beach passed ordinance 16-97, both of which purported to restructure the Cities'
franchising and licensing of telecommunications service providers' use of the public rights-of-way in
accordance with the new federal law. The Cities' ordinances were similar in many respects, but they adopted
different approaches to several significant issues.
BellSouth was the incumbent local telephone service provider in both of the Cities at the time the Act,
and subsequently when the ordinances, were passed. BellSouth first brought suit in federal district court
against Coral Springs, seeking a declaratory judgment that ordinance 97-114 was preempted both by Florida
state law and by § 253 of the Act. Coral Springs filed a counterclaim for breach of contract in which it sought
to enforce an ordinance passed in 1965 that gave it the option to purchase BellSouth's facilities. BellSouth
moved for summary judgment on its preemption claims and on Coral Springs's counterclaim, and Coral
Springs moved for summary judgment on BellSouth's preemption claim. The district court upheld some
sections of the ordinance, but found that others were preempted by state or federal law, or both. The district
court also granted BellSouth summary judgment on Coral Springs's counterclaim.
After filing suit against Coral Springs, but before that case was resolved, BellSouth filed a similar
suit against Palm Beach, seeking a declaratory judgment that its ordinance 16-97 was preempted. Palm Beach
filed a counterclaim seeking compensation under the terms of the ordinance. Both parties moved for
summary judgment, and the district court, employing the same analysis it had utilized in its
summary-judgment order in the Coral Springs case, upheld parts of the ordinance while striking down others
on a mixture of federal and state preemption grounds. In its motion for summary judgment in this case,
BellSouth had argued that if a substantial portion of the ordinance were preempted, the entire ordinance
should fall. The district court, however, found that the preempted sections were severable, and allowed the
non-preempted sections of the ordinance to stand. Because one of the sections of the ordinance that the
district court struck down was that governing compensation for use of the rights-of-way, the district court sua
sponte granted BellSouth summary judgment on Palm Beach's counterclaim.
The Cities appealed, challenging the district court's findings of preemption and dismissal of their
counterclaims. BellSouth cross-appealed, claiming that the district court erred in upholding sections of the
ordinances, or, in the alternative, that the preempted sections were not severable, and, therefore, the
ordinances should have been struck down in their entirety.
II. DISCUSSION
"We apply the same legal standards in our preemption analysis that the district court was required
to apply in its order granting summary judgment; therefore, we review the district court's decision de novo."
Lewis v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.1997). Because federal preemption of a state or
local law is premised on the Supremacy Clause of the United States Constitution, see Bosarge v. United States
Dep't of Educ., 5 F.3d 1414, 1419 (11th Cir.1993), and because of the longstanding principle that federal
courts should avoid reaching constitutional questions if there are other grounds upon which a case can be
decided, Santamorena v. Ga. Military Coll., 147 F.3d 1337, 1343 (11th Cir.1998), we first decide whether
the ordinances are preempted by Florida state law before considering whether they are federally preempted
by the Act. Further, because each City has included a severability clause in its ordinance stating it is the City's
intention that the remainder of the ordinance remain in effect if part of the ordinance is invalidated, we must
address each relevant section of each ordinance in turn, reserving judgment on the preemption of the
ordinances as a whole until both state and federal preemption analyses have been completed.
A. Preemption by Florida State Law
Under Florida Statutes § 364.01(2), the Florida Public Service Commission ("FPSC") has jurisdiction
over the regulation of telecommunications companies within the state. Local governments are preempted
from regulating telecommunications companies except to the extent provided in § 337.401, which is the
provision of state law that historically has governed municipalities' power to regulate and tax
telecommunications companies' use of the public rights-of-way. Our analysis of § 337.401 in this case is
complicated somewhat by the fact that the statute has been amended twice since these lawsuits were filed,
and future amendments are scheduled. When these lawsuits were initiated in August 1997 and April 1998,
the text of § 337.401 had stood unaltered since 1994. In May 1998, however, § 337.401 was substantially
amended. See 1998 Fla. Laws ch. 98-147. The district court duly took the 1998 amendments to § 337.401
into account when deciding the state-law preemption question in its summary-judgment orders, which issued
in January and September of 1999. After the district court had entered its final judgment in both cases, the
Florida legislature amended § 337.401 again with the passage of the Communications Services Tax
Simplification Law ("Simplification Law"), 2000 Fla. Laws ch. 00-260. In order to understand the changes
envisioned in the Simplification Law, we must begin with an assessment of the law that predated it.
Under the version of § 337.401 as amended in 1998, it was clear that municipalities were prohibited
from exercising their authority to manage the public rights-of-way in such a way as to exert regulatory control
over matters that fell under the exclusive jurisdiction of the FPSC or the Federal Communications
Commission ("FCC"). Fla. Stat. § 337.401(6) (Supp.1998). Municipalities could, however, require
telecommunications companies to pay fees of up to "one percent of the gross receipts on recurring local
service revenues for services provided within the corporate limits of the municipality" as consideration for
the right to occupy the public rights-of-way. Id. at § 337.401(3). Municipalities also had the power to enter
into agreements with telecommunications companies requiring them to pay fees based on the number of miles
of cable laid in the public rights-of-way, as well as certain other fees as compensation for the direct, physical
use of the rights-of-way and the administrative costs of regulating the rights-of-way. Id. at § 337.401(4).
The impetus for the Simplification Law appears to have been, in large part, the need to bring Florida
law into compliance with the Telecommunications Act of 1996. To this end, the Simplification Law mapped
out a complicated schedule of amendments to the Florida Statutes, including "transitional" amendments to
§ 337.401, which took effect on 1 January 2001. 2000 Fla. Laws ch. 00-260, § 50; Fla. Stat. § 337.401(Supp.2001). The transitional version of § 337.401 severely curtails municipal authority over
telecommunications companies by prohibiting municipalities from requiring telecommunications companies
to enter into a "license, franchise, or other agreement" as a condition of using the public rights-of-way, id.
at § 337.401(3)(a), and by requiring that any municipal regulations pertaining to telecommunications
companies' use of the public rights-of-way "must be related to the placement or maintenance of facilities in
such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters
necessary to manage the roads or rights-of-way," id. at § 337.401(3)(b).
The other significant feature of the transitional version of § 337.401, and the feature that indicates
why a transitional provision is necessary, is the requirement that each municipality make an election that will
affect the rate it will be able to charge if the local communications services tax ("LCST"), authorized under
§ 11 of the Simplification Law, takes effect on 1 October 2001. Section 337.401(3)(c)(1) requires
municipalities to choose whether they will collect certain limited permit fees from communications providers
for use of the public rights-of-way; if a municipality chooses to charge permit fees, it must reduce the rate
of its LCST by 0.12%, but if it chooses not to charge such fees, it may increase the rate by 0.12%. Because
the LCST does not take effect until 1 October 2001, if it takes effect at all, the transitional § 337.401 carries
over, in subsections (3)(e) and (3)(f), the language of the 1998 version's subsections (3) and (4) pertaining
to taxes and fees that may be levied on telecommunications companies in the meantime. Section 337.401 is
scheduled to be amended again on 1 October 2001, removing the language in subsections (3)(e) and (3)(f)
entirely to reflect the implementation of the new LCST scheme. See 2000 Fla. Laws ch. 00-260, § 51.
The LCST is intended to replace the patchwork system by which each municipality had set its own
formula (within the bounds of prior versions of § 337.401) for how it would tax telecommunications
companies' use of the public rights-of-way. In § 12 of the Simplification Law, codified at Fla. Stat. § 202.20(Supp.2001), the Florida legislature delegated to the Revenue Estimating Conference ("REC") the
responsibility of determining, based on the factors prescribed in that section, what the local communications
tax rate should be for each municipality and county in the state. Recognizing the difficulties inherent in this
task, the Florida legislature structured the Simplification Law to prepare for the contingency that the REC
would not be able to establish acceptable rates for the LCSTs: unless the Florida legislature acts before 30
June 2001, on that date section 58 of the Simplification Law will repeal the transitional amendments to §
337.401, as well as the 1 October 2001 amendments to § 337.401 and the other sections implementing the
LCST, and § 59 will reinstate the 1998 version of § 337.401 (with only minor changes) on the same day.
Presumably, if the REC is successful in setting the rates for the LCSTs, the Florida Legislature will repeal
§§ 58 and 59 before 30 June 2001 so that the October amendments, which comprise the essence of the
Simplification Law, will go into effect as scheduled.2
That is the overall plan under the Simplification Law; however, "[w]here a statute is amended after
the entry of judgment in the trial court, but before the decision of the appellate court, the appellate court must
'review the judgment of the district court in light of [the] law as it now stands, not as it stood when the
judgment below was entered'." Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1519-20 (11th Cir.1992)
2
On 2 May 2001, the Florida Legislature passed S.B. 1878, which provides that the LCST and the
other October amendments envisioned in the Simplification Act will take effect on 1 October 2001, with
certain changes and clarifications. As of the date of this opinion's issuance, this bill has not yet been
signed into law by the Governor of Florida.
(quoting Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972)).
Accordingly, we can only conduct our state-law preemption analysis under the version of the statute that is
currently in effect-the transitional version of § 337.401.3
1. Preemption of Specific Sections of Coral Springs Ordinance 97-114 by the Transitional Version of
§ 337.401
As a preliminary matter, it is necessary to define some of the key terms as they are used in the state
law and in the ordinance. Section 337.401 addresses municipal regulation of "telecommunications
companies," which are defined in § 364.02(12) as "every corporation, partnership, and person ... offering
two-way telecommunications service to the public for hire," but explicitly not including "[a]n entity which
provides a telecommunications facility exclusively to a certificated telecommunications company" or "[a]
private computer data network company not offering service to the public for hire." Ordinance 97-114,
however, refers to "telecommunications facilities," which it defines in section 20-1(20) as "facilit[ies] that
[are] used to provide one or more telecommunications services, any portion of which occupies public rights
of way." "Telecommunications services" are defined in section 20-1(21) as "the transmission for hire, of
information in electronic or optical form, including, but not limited to, voice, video, or data ... but does not
include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications
Commission or any successor thereto, cable service or open video service." Telecommunications facilities
are distinguished from "private communications systems," which are defined in section 20-1(15) as
"facilit[ies] placed in whole or in part in the public right of way for the provision of communications in
connection with a person's business, but not encompassing in any respect the provision of telecommunications
services." The ordinance uses the term "communications facility," defined in section 20-1(5), to refer to both
telecommunications facilities and private communications systems.
It is clear from these definitions that provisions of ordinance 97-114 governing "telecommunications
facilities" are subject to preemption by § 337.401's limitations on municipal power to regulate
"telecommunications companies." Provisions of the ordinance regulating "private communications systems,"
however, do not fall within the penumbra of § 337.401. Because no section of the ordinance is preempted by
state law as it pertains to private communications systems, our preemption analysis is conducted exclusively
3
While it is possible for the post-judgment amendment of a challenged statute to render the appeal of
that judgment moot, see Fillyaw, 958 F.2d at 1519-20, in this case, a live controversy remains as to
whether the Cities' ordinances are preempted under the Simplification Law's transitional amendments to §
337.401.
in terms of its effect on telecommunications facilities, as that term is defined in the ordinance.
We address each relevant section of the ordinance in turn.
Section 20-2. Franchise Required: This section requires the operators of telecommunications
facilities to obtain franchises prior to providing telecommunications services within Coral Springs. The
franchise requirements in subsections (1) and (2) and the license requirements for telecommunications
facilities in subsection (3) are flatly preempted by § 337.401(3)(a), which prohibits municipalities from
requiring telecommunications companies to enter licenses, franchises, or other agreements as a condition of
using the public right-of-way to provide telecommunications services.
Section 20-3. Compensation Required: This section requires the operators of telecommunications
facilities to pay the greater of an occupancy fee or a franchise fee to Coral Springs as compensation for the
use of the public rights-of-way. The franchise fee, which is established in section 20-21(5)(A) as 10% of the
gross revenues generated by the operator of the telecommunications facility's use of the public rights-of-way,
is obviously preempted by the prohibition of franchises in § 337.401(3)(a). Section 20-3 states that the
occupancy fee, however, "is intended to recover ongoing right-of way costs to the City caused by burdens
users place upon the right-of-way," and is to be established on a per-linear-foot basis for telecommunications
facilities located in the rights-of-way. This type of a fee is specifically authorized by state law, but §
337.401(3)(f) establishes several factors that limit the maximum permissible amount of the fee. Thus, the
occupancy fee is not facially void under state law, but there remains a question as to whether Coral Springs
has in fact limited the rate of the occupancy tax it exacts to comply with the state-law limits outlined in §
337.401(3)(f). Because neither party has presented evidence of whether the actual amount of the occupancy
fee Coral Springs has charged exceeds that permitted in § 337.401(3)(f), neither party is entitled to summary
judgment on the issue of whether the occupancy tax, as applied, is preempted by state law.
Section 20-4. General Conditions Upon Use of Rights-of-Way: The district court upheld most of this
section, finding it to be a "reasonable regulation of what happens on the ground within the rights-of-way,"
as it consists primarily of straightforward provisions governing the installation, construction, relocation, and
maintenance of telecommunications facilities. We find, with the exception of two subsections, that section
20-4 is not preempted by state law because its provisions fall within the ambit of § 337.401(3)(b), which
reserves to municipalities the right to adopt rules or regulations governing the roads and rights-of-way, so
long as they are "related to the placement or maintenance of facilities in such roads or rights-of-way, [are]
reasonable and nondiscriminatory, and ... include only those matters necessary to manage the roads or
rights-of-way."
The first problem is the second sentence in subsection (4) to section 20-4, which reads: "Each
operator must respond to requests for information regarding its system and plans for the system as the City
may from time to time issue, including requests for information regarding its plans for construction, operation
and repair and the purposes for which the plant is being constructed, operated or repaired." As stated
previously, under § 364.01(2), local governments are preempted from regulating telecommunications
companies except to the extent provided in § 337.401. While Coral Springs's reservation of the power to
request information from operators of telecommunications facilities regarding their future plans for use of
the rights-of-way constitutes a reasonable regulation of the rights-of-way under § 337.401(3)(b), the second
sentence of subsection (4), by its terms, "includes," but is not limited to, requests for information concerning
the rights-of-way. Because it is not limited to matters involving the rights-of-way, this provision exceeds the
municipality's grant of authority from the state, and is preempted.4
The second problem with section 20-4 is found in subsection (7), titled "No discrimination." Under
this subsection, Coral Springs requires that telecommunications facility operators not discriminate against
"subscribers, programmers, or residents of the City on the basis of race, color, creed, national origin, sex, age,
conditions of physical handicap, religion, ethnic background, marital status, or sexual orientation," and that
they comply with federal, state, and local equal employment laws. This subsection also prohibits
telecommunications facility operators from discriminating or retaliating against individuals or the City for
the exercise of any legally protected right. The requirements in subsection (7) clearly exceed the
municipality's authority under § 337.401(3)(b) to issue regulations "related to the placement or maintenance
of facilities in [its] roads or rights-of-way." This subsection includes a "savings clause," however, which
states that these provisions are "[s]ubject to State and Federal law limitations ... on the City's authority."
Thus, we need not strike down this subsection on a facial challenge because it is effectively
"self-preempting."5 Essentially, this subsection stands as a reservation-of-rights clause in the event that Coral
4
We decline to apply a limiting construction to save the valid portions of the information request
provision, because "as a federal court, we must be particularly reluctant to rewrite the terms of a state
statute." Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir.1993) (emphasis omitted).
5
BellSouth has not claimed that Coral Springs is, in fact, enforcing the terms of this subsection in a
manner inconsistent with § 337.401.
Springs is granted the authority to regulate these matters in the future.
Section 20-5. Protection of the City and Residents: Under this section, Coral Springs establishes
standards for indemnification, insurance, performance bonds, and a security fund that are required of
telecommunications companies seeking to use the public rights-of-way. These are reasonable regulations
directly related to the management of the rights-of-way, and are therefore authorized under § 337.401(3)(b).
Section 20-6. Enforcement and Remedies: Subsections (1) "Administration," (7) "Remedies
Cumulative," (13) "Reservation of authority," and (15) "Ordinance not a contract," are "housekeeping"
provisions that are necessary to the enforcement of the ordinance but do not actually regulate
telecommunications providers; these sections are not preempted by state law.
Subsections (2), (3), (5), (6), (12), and (14) of section 20-6 pertain to licenses and franchises, and are
therefore preempted by § 337.401(3)(a), which prohibits these arrangements to the extent they apply to
telecommunications companies.
Subsection (4) "Penalties" provides for a fine to be levied against any person who violates the
ordinance. While the fine may not be used to enforce any section of the ordinance that has been found to be
preempted, the power to fine is a police power, and therefore is reserved to the municipality under §
337.401(3)(b).
Subsection (8) "Access to books and records" grants Coral Springs access to all books and records
in a telecommunications company's possession pertaining to "the construction, operation, or repair of the
communications facility," and "to the extent that the franchise fees or license fees are based upon gross
revenue or gross receipts," Coral Springs claims access to "all books and records related to revenues derived
from the operation of the communications facility." Coral Springs's power to access documents pertaining
to the construction and repair of communications facilities is necessary to its direct regulation of the
rights-of-way, and is therefore authorized under § 337.401(3)(b); however, under state law it does not have
a right to access books and records relating to "operations," as that term extends far beyond those matters
directly related to the rights-of-way. Further, because the franchise and license fee as applied to
telecommunications companies is preempted under § 337.401(3)(a), Coral Springs's ability to request
financial information for the purpose of determining compliance with such a fee is also preempted.
Subsection (9) "Retention of Records," and subsection (10) "Reports," require the operators of
telecommunications facilities to retain records and prepare reports as requested to aid Coral Springs in
determining if the facilities are in compliance with the ordinance. These requirements are valid under §
337.401(3)(b) as they are necessary to Coral Springs's regulation of the rights-of-way.
Subsection (11) "Maps" requires operators of telecommunications facilities to "maintain accurate
maps and improvement plans which show the location, size, and a general description of all facilities installed
in the rights-of-way." This requirement is valid under § 337.401(3)(b) as a reasonable means by which the
City can ensure that future construction in the rights-of-way does not interfere with or damage existing
communications lines and facilities.
Section 20-7. Transitional Provisions: Subsection (1) addresses the process by which persons
operating telecommunications facilities without a franchise or license at the time of the ordinance's enactment
should file for a franchise or license, and subsection (2) states that persons holding franchises or licenses at
the time of the ordinance's enactment may continue to operate under the terms of the franchise or license until
its expiration. These subsections are preempted by § 337.401(3)(a), which prohibits municipalities from
requiring telecommunications companies to enter franchises or licenses. Subsection (3), which states that the
passage of the ordinance does not affect persons with existing leases of property in the rights-of-way, is not
preempted.
Section 20-21. Application for a Franchise: This section sets out the process an applicant must
undergo and the criteria an applicant must meet in order to obtain a franchise to operate a telecommunications
facility in the rights-of-way in Coral Springs, and also sets out the formula for the calculation of the franchise
fee. While Coral Springs does have the right under § 337.401(3)(a) to request some of the information and
credentials from a telecommunications company that it requests under section 20-21, it clearly may not do
so in the context of a franchise application, and it may not charge a franchise fee. This section is preempted
in its entirety.
2. Preemption of Specific Sections of Palm Beach Ordinance 16-97 by the Transitional Version of §
337.401
The scope of ordinance 16-97 is significantly broader than that of ordinance 97-114, as it regulates
telecommunications facilities and services, private communications systems, cable systems, and open video
systems. The only provisions of the ordinance subject to preemption by § 337.401, however, are those
pertaining to the regulation of telecommunications facilities and services, as those terms are defined in the
ordinance,6 and so our analysis of the ordinance is limited to its effects on those areas.
Title I, Section 2. Franchise Required: This section requires the operators of telecommunications
facilities to obtain franchises prior to providing telecommunications services within Palm Beach. It is
preempted by § 337.401(3)(a), which explicitly prohibits municipalities from requiring telecommunications
companies to enter licenses, franchises, or other agreements as a condition of using the public right-of-way
to provide telecommunications services.
Title I, Section 3. Compensation Required: This section requires the operators of telecommunications
facilities to pay the following fees: (i) a fee for applying for a franchise; (ii) additional compensation should
Palm Beach's expenses in evaluating the franchise application exceed the initial application fee; (iii) the costs
of any experts or consultants used in evaluating the application; (iv) an annual occupancy fee; and (v) a
franchise fee, established in title II of the ordinance.
All of the fees associated with a franchise would be preempted by § 337.401(3)(a), which prohibits
municipalities from imposing franchise agreements on telecommunications companies. Subsection 3.4,
however, includes a savings clause, stating that the franchise fees need not be paid if "State law ... requires
otherwise." Thus, while Palm Beach cannot currently charge any of the fees associated with the franchise
provisions of the ordinance, we need not strike down this section on a facial challenge because it is
"self-preempting." This subsection stands as a reservation-of-rights clause in the event that Palm Beach is
granted the authority to require franchises of telecommunications companies in the future.7
The ordinance does not elaborate on the terms of the annual occupancy fee, other than to state in
subsection 3.3 that it "may be charged on a gross revenue or per-linear-foot basis." Subject to limitations,
an occupancy fee based on gross revenues is permitted under state law in § 337.401(3)(e), and a fee based
on distance of cable laid is permitted in § 337.401(3)(f). The occupancy fee, therefore, is not facially
preempted, but may be preempted if the actual fees charged by Palm Beach exceed the limitations in §
337.401. Because neither party has presented evidence of the actual amount of the occupancy fee Palm Beach
6
Title I, section 1.23 defines "telecommunications facility" as "a facility that is used to provide one or
more telecommunications services, any portion of which occupies the public rights of way." Section 1.24
defines "telecommunications services" as "the transmission for hire, of information in electronic or optical
form, including, but not limited to, voice, video, or data," and includes "telephone service but does not
include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal
Communications Commission."
7
BellSouth has not claimed that Palm Beach is, in fact, currently charging it the franchise fee and
associated costs.
has charged, neither party is entitled to summary judgment on the issue of whether the occupancy tax, as
applied, is preempted by state law.
Title I, Section 4. General Conditions Upon Use of Rights-of-Way: This section consists primarily
of straightforward provisions governing the installation, construction, relocation, and maintenance of
telecommunications facilities. With three exceptions, section 4 is not preempted by state law because its
provisions are reasonable rules or regulations "related to the placement or maintenance of facilities in such
roads or rights-of-way" permitted under § 337.401(3)(b).
The first preempted provision is subsection 4.2.6, which reads:
Every operator of a communications facility shall make available to other franchisees or licensees
any of its conduits that is excess, so long as it is excess, at a reasonable, non-discriminatory rental
fee.... The Town may require as a condition of issuing any right-of-way permit for underground
conduit the installation of which requires excavation ... that the franchisee, licensee, or holder of the
right-of-way permit emplace conduit in excess of its present and reasonably foreseeable requirements
for the purpose of accommodating other franchisees and licensees for a reasonable charge.
This requirement places a potentially substantial burden on telecommunications companies that, while
perhaps furthering Palm Beach's policies for the development of its technological infrastructure, goes far
beyond the authority allotted it in § 337.401(3)(b) to regulate "only those matters necessary to manage the
roads or rights-of-way."
The second preempted subsection, 4.4, states:
Every communications facility shall be subject to the right of periodic inspection and testing by the
Town to determine compliance with the provisions of this Ordinance, a franchise or license
agreement, or other applicable law. The Town shall have the right, upon request, to be notified and
present when the communications facility is tested by the operator. Each operator must respond to
requests for information regarding its system and plans for the system as the Town may from time
to time issue, including requests for information regarding its plans for construction, operation and
repair and the purposes for which the plant is being constructed, operated or repaired.
While Palm Beach does have certain rights to inspect the telecommunications facilities and request
information relating to them, under § 337.401(3)(b) it may only do so with respect to matters concerning the
physical use and management of the rights-of-way. Because this subsection is not so limited, it is preempted.
The third preempted subsection is 4.7, titled "No discrimination." Under this subsection, Palm Beach
requires that telecommunications facility operators not discriminate "on the basis of race, color, creed,
national origin, sex, age, conditions of physical handicap, religion, ethnic background, marital status, or
sexual orientation," in both its provision of service and its employment practices. This subsection also
prohibits telecommunications facility operators from discriminating or retaliating against individuals or the
City for the exercise of any legally protected right. Finally, the subsection requires that telecommunications
facilities operators not deny access or levy different rates on customers based on income. The requirements
in subsection 4.7 go far beyond matters necessary to regulate the physical rights-of-way, and therefore exceed
the municipality's authority under § 337.401(3)(b).
Title I, Section 5. Protection of the Town and Residents: Under this section, Palm Beach establishes
standards for indemnification, insurance, performance bonds, and a security fund that are required of
telecommunications companies seeking to use the public rights-of-way. These are reasonable regulations
directly related to the management of the rights-of-way, and are therefore authorized under § 337.401(3)(b).
Title I, Section 6. Enforcement and Remedies: Subsections 6.1 "Town Manager responsible for
administration," 6.7 "Remedies Cumulative," 6.13 "Reservation of Authority," 6.14 "No waiver," and 6.15
"Ordinance not a contract," are "housekeeping" provisions that are necessary to the enforcement of the
ordinance but do not actually regulate telecommunications providers; these sections are not preempted by
state law.
Subsections 6.2, 6.3, 6.5, 6.6, and 6.12 pertain to licenses and franchises, and are therefore preempted
by § 337.401(3)(a), which prohibits these arrangements to the extent they apply to telecommunications
companies.
Subsection 6.4 "Penalties" provides for a fine to be levied against any person who violates the
ordinance. While the fine may not be used to enforce any section of the ordinance that has been found to be
preempted, the power to fine is a police power, and therefore is reserved to the municipality under §
337.401(3)(b).
Subsection 6.8 "Access to books and records" grants Palm Beach access to all books and records in
a telecommunications company's possession "related to the construction, operation, or repair of the
communications facility," as well as all books and records "related to revenues derived from the operation
of the communications facility." Palm Beach's power to access documents pertaining to the construction and
repair of communications facilities is necessary to its direct regulation of the rights-of-way, and is therefore
authorized under § 337.401(3)(b); however, under state law it does not have a right to access books and
records relating to operations or revenues, as those matters are not directly related to the rights-of-way.
Subsection 6.9 "Retention of Records," and subsection 6.10 "Reports," require the operators of
telecommunications facilities to retain records and prepare reports as requested to aid Palm Beach in
determining if the facilities are in compliance with the ordinance. These requirements are valid under §
337.401(3)(b) as they are necessary to Palm Beach's regulation of the rights-of-way.
Subsection 6.11 "Maps" requires operators of telecommunications facilities to "maintain accurate
maps and improvement plans which show the location, size, and a general description of all facilities installed
in the public rights-of-way." This requirement is valid under § 337.401(3)(b) as a reasonable means by which
the City can ensure that future construction in the rights-of-way does not interfere with or damage existing
communications lines and facilities.
Title I, Section 7. Transitional Provisions: Subsection 7.1 addresses the process by which persons
operating telecommunications facilities without a franchise or license at the time of the ordinance's enactment
should file for a franchise or license, and subsection 7.2 states that persons holding franchises or licenses at
the time of the ordinance's enactment may continue to operate under the terms of the franchise or license until
its expiration. These subsections are preempted by § 337.401(3)(a), which prohibits municipalities from
requiring telecommunications companies to enter franchises or licenses. Subsection 7.3, which states that
the passage of the ordinance does not affect persons with existing leases of property in the rights-of-way, is
not preempted.
Title II, Section 1. Application for a Franchise: This section sets out the process an applicant must
undergo and the criteria an applicant must meet in order to obtain a franchise to operate a telecommunications
facility in the rights-of-way in Palm Beach, and also sets out the formula for the calculation of the franchise
fee. While Palm Beach does have the right under § 337.401(3)(a) to request some of the information and
credentials from a communications company that it requests under this section, it clearly may not do so in
the context of a franchise application, and it may not charge a franchise fee. This section is preempted in its
entirety.
B. Preemption by § 253 of the Telecommunications Act of 1996
Because sections of both ordinances remain that were not preempted by state law, it is necessary for
us to consider BellSouth's claim that the ordinances are preempted by § 253 of the Act, titled "Removal of
Barriers to Entry."8 Section 253 reads, in relevant part:
(a) In general
No State or local statute or regulation, or other State or local legal requirement, may prohibit
or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service.
8
Codified at 47 U.S.C. § 253.
(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 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 [Federal Communications]
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.
As has been observed by other federal courts, the language and structure of § 253 raise two difficult
questions of statutory interpretation: (1) what is the preemptive scope of § 253; and (2) who may seek
enforcement of the provisions of § 253? See TCG Detroit v. City of Dearborn, 206 F.3d 618, 623 (6th
Cir.2000); Cablevision of Boston, Inc. v. Public Improvement Comm'n, 184 F.3d 88, 98-99 (1st Cir.1999).
We must answer these issues of first impression before we can consider whether the remaining sections of
the ordinances are preempted by federal law.9
1. Substantive Limits on State and Local Authority in § 253
The heart of § 253 is subsection (a), which prohibits state and local governments from passing laws
or other regulations that "may prohibit or have the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service." 47 U.S.C. § 253(a). It is beyond dispute that
subsection (a) imposes a substantive limitation on the authority of state and local governments to regulate
telecommunications.
9
The Sixth Circuit has held that the question of whether § 253 creates a private cause of action is a
question affecting our subject-matter jurisdiction. TCG Detroit, 206 F.3d at 622. If it were a
jurisdictional matter, we would be required to address it first, before proceeding to the issue of § 253's
preemptive scope. See Garcia-Mir v. Smith, 766 F.2d 1478, 1486 (11th Cir.1985) (per curiam). The
Supreme Court, however, has flatly stated that "[t]he question whether a federal statute creates a claim for
relief is not jurisdictional." Northwest Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 365, 114
S.Ct. 855, 862, 127 L.Ed.2d 183 (1994). Therefore, not being compelled to address the question of
whether § 253 creates a private cause of action first, we address these closely entwined issues in the most
analytically manageable order.
The difficult question here pertains to the function of subsections (b) and (c). Several federal district
courts, including the district court in these cases, have interpreted subsections (b) and (c) as imposing
substantive limitations on state and local authority in the telecommunications field. Primarily in the context
of interpreting subsection (c), these courts have held that the only regulatory authority retained by the state
and local governments is the authority to perform the functions specifically reserved in those subsections.
See Bell Atlantic-Md., Inc. v. Prince George's County, Md., 49 F.Supp.2d 805, 814 (D.Md.1999) (rev'd on
other grounds, 212 F.3d 863 (4th Cir.2000)); AT&T Communications of the Southwest, Inc. v. City of Dallas,
8 F.Supp.2d 582, 591 (N.D.Tex.1998); TCG Detroit v. City of Dearborn, 977 F.Supp. 836, 841
(E.D.Mich.1997) (aff'd, 206 F.3d 618 (6th Cir.2000)). At least one district court, however, has interpreted
(b) and (c) not as limiting state and local authority, but as defining the "safe harbors," that is, the exceptions
to the general prohibition stated in subsection (a). See TCG New York, Inc. v. City of White Plains, N.Y., 125
F.Supp.2d 81, 87 (S.D.N.Y.2000).
The confusion arises because of perceived inconsistencies within the structure of the statute.
Subsection (a) states the general limitations on state and local government regulation of telecommunications.
Subsections (b) and (c) are structurally identical to one another: (b) begins with the phrase "Nothing in this
section shall affect ...", and (c) begins with the phrase "Nothing in this section affects ..."; thus, (b) and (c)
are couched not in terms of limitation, but of exception to the general rule set forth in (a). Subsection (d),
however, states that the FCC shall preempt any state or local statute or regulation "that violates subsection
(a) or (b) of this section." It would seem that if an entity could "violate" subsection (b), then subsection (b)
must impose some sort of substantive limitations, and because they are structured similarly, if (b) imposes
separate limitations, so must (c). Therein lies the apparent conflict. Based on four factors, however, we find
that subsection (a) contains the only substantive limitations on state and local government regulation of
telecommunications, and that subsections (b) and (c) are "safe harbors," functioning as affirmative defenses
to preemption of state or local exercises of authority that would otherwise violate (a).
When interpreting a statute, "it is axiomatic that a court must begin with the plain language of the
statute." United States v. Prather, 205 F.3d 1265, 1269 (11th Cir.2000). The first and most basic reason for
interpreting (b) and (c) as safe harbor provisions is that, reading (a), (b), and (c) together, it is the only
interpretation supported by the plain language of the statute; unless one omits the opening phrase in
subsections (b) and (c) completely or otherwise inflicts some grave injustice on the rules of English grammar,
it is not possible to read these subsections as pronouncing separate limitations that a state or local government
could "violate."10 Because they begin with the phrase "Nothing in this section shall affect ...," it is clear that
subsections (b) and (c) are defining exceptions to (a), and that whatever language follows that initial phrase,
it derives meaning only through its relationship to (a). Latent in the opinions of the courts that have read
subsections (b) and (c) as independent limitations on state and local authority is the maxim that inclusion unis
est exclusion alterius, that is, that by expressly reserving certain powers to the state and local governments
in (b) and (c), Congress must have intended that only those powers be reserved. While this argument may
have some appeal at first blush, we note that if we were to read (b) and (c) as delineating the absolute
boundaries of state and local regulatory authority in the field of telecommunications, the limitation set forth
in subsection (a) would be superfluous. Settled principles of statutory construction counsel against such a
reading, see Mears Transp. Group v. Florida, 34 F.3d 1013, 1019 (11th Cir.1994), particularly when it would
violate the plain meaning of the statute.
Our second reason for viewing subsection (a) as the only limitation on state and local governments
in § 253 and interpreting subsections (b) and (c) as exceptions to (a) is that that is how the FCC has
interpreted the statute.11 In 1998, the FCC issued its "Suggested Guidelines for Petitions for Ruling under
Section 253 of the Communications Act." Available at http://www.fcc.gov/ Bureaus/Common _
Carrier/Public _ Notices/ 1998/fcc98295.txt. In these guidelines, the FCC stated:
In preparing their submissions, parties should address as appropriate all parts of section 253. In
particular, parties should first describe whether the challenged requirement falls within the
proscription of section 253(a); if it does, parties should describe whether the requirement
nevertheless is permissible under other sections of the statute, specifically sections 253(b) and (c).
Id. Thus, it is clear that (b) and (c) are exceptions to (a), rather than separate limitations on state and local
authority in addition to those in (a). Consistent with this interpretation, if a party seeking preemption fails
10
Of course, this is not to say that a state statute or regulation may not meet the criteria of subsection
(b), and a local ordinance may not meet the criteria of subsection (c). But if the statute or ordinance in
question does not meet these criteria, the state or local government has not "violated" the subsections;
rather, the particular regulation is not immune from preemption as an exception to the general prohibition
in (a).
11
As the federal agency charged with implementing the Act, the FCC's views on the interpretation of
§ 253 warrant respect. "We need not inquire whether the degree of deference described in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d
694 (1984), is in order; it is enough to observe that the well-reasoned views of the agencies implementing
a statute constitute a body of experience and informed judgment to which courts and litigants may
properly resort for guidance." Olmstead v. Zirming, 527 U.S. 581, 598, 119 S.Ct. 2176, 2186, 144
L.Ed.2d 540 (1999) (internal citations omitted).
to make the threshold showing that a state or local statute or ordinance violates (a) because it "may prohibit
or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service," the FCC has found it unnecessary to consider whether the statute or ordinance
is "saved" by the exceptions in (b) or (c). See, e.g., In re Missouri Municipal League, --- FCC Rec. ----
(2001); In re Minnesota, 14 FCC Rec. 21,697, 21,730 (1999); In re American Communications Servs., Inc.,
14 FCC Rec. 21,579, 21,587-88 (1999); In re Cal. Payphone Ass'n, 12 FCC Rec. 14,191, 14,203 (1997).
The third factor bolstering our conclusion that Congress intended subsections (b) and (c) to be used
defensively by state and local governments comes from the legislative history. The remarks of Senator
Hollings during the Senate debate explain how (b) and (c) were written into the Act:
When we provided that [subsection (a) ], the States necessarily came and said, wait a minute, that
sounds good, but we have the responsibilities over the public safety and welfare. We have a
responsibility along with you with respect to universal service. So what about that? How are we
going to do our job with that overencompassing [sic] general section (a) that you have there. So we
[added subsection (b) ]. We did not want and had no idea of taking away that basic responsibility for
protecting the public safety and welfare and also providing and advancing universal service. So that
was written in at the request of the States, and they like it. The mayors came, as you well indicate,
and they said we have our rights of way ... and every mayor must control the rights of way. So we
wrote [subsection (c) ] in there.... We have had experience here with the mayors coming and asking
us. And this is the response. That particular section (c) is in response to the request of the mayors.
141 Cong. Rec. S8174 (daily ed. June 12, 1995). Put in context, it is clear that subsections (b) and (c) were
added to the statute to preserve, rather than to limit, state and local government authority.
The final factor supporting our reading of § 253 is the legislative history surrounding subsection (d).
This history, for reasons that are fully addressed infra in our discussion of whether there is a private cause
of action under § 253, makes it clear that subsection (d) was not intended to affect the interrelationship of
subsections (a), (b), and (c), but that its apparent inconsistency with the scheme set forth in those subsections
was the result of a late amendment that was intended only to designate the forum in which challenges to
statutes or ordinances governing particular matters were brought.
2. Private Cause of Action
Our touchstone in determining whether a federal statute implies a private cause of action remains
the four-part test handed down by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d
26 (1975).12 Opinions refining the Cort analysis have indicated that the focal point of the inquiry is the
12
The Cort factors are: (1) whether "the plaintiff one of the class for whose especial benefit the
statute was enacted;" (2) whether there is "any indication of legislative intent, explicit or implicit, either to
create such a remedy or to deny one;" (3) whether it is "consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff;" and (4) whether the cause of action is "one
second factor, evidence of Congressional intent, and that a court should search for such evidence primarily
within the language and structure of the statute, as well as in the legislative history. See Thompson v.
Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Ayres v. Gen. Motors Corp., 234
F.3d 514, 522-23 (11th Cir.2000).
In this case, an analysis of the statutory language creates more questions than it answers about what
causes of action Congress intended to create and who it intended to enforce them. Subsection (d), titled
"Preemption," is the enforcement provision, and it expressly obligates the FCC to preempt statutes that
"violate" subsections (a) and (b). If the FCC is to enforce (a) and (b), this suggests that the enforcement of
(c) is left to private parties. But, as we have demonstrated, subsections (b) and (c) are safe harbor provisions
that cannot be violated, and therefore cannot form the basis of a cause of action against a state or local
government. In this case, we must go beyond the plain language of the statute to reconcile the apparent
conflicts when subsections (a) through (d) are read literally.
Fortunately, the legislative history pertaining to subsection (d) clearly indicates Congress's intentions
when it drafted subsection (d). The Act began as Senate Bill 652 in the 104th Congress. In its initial form,
subsection (d) read:
PREEMPTION.—If, after notice and an opportunity for public comment, the [Federal
Communications] Commission determines that a State or local government has permitted or imposed
any statute, regulation, or legal requirement that violates or is inconsistent with this section, the
Commission shall immediately preempt the enforcement of such statute, regulation, or legal
requirement to the extent necessary to correct such violation or inconsistency.13
Under this version, it was clear that preemption under this section was a purely administrative procedure, with
jurisdiction vesting in the FCC.
Senators Feinstein and Kempthorne, the former mayors of San Francisco and Boise, respectively,
were troubled by the impact that subsection (d) would have on city governments. Senator Feinstein stated
why she and Senator Kempthorne felt FCC jurisdiction over preemption was improper:
That means that cities will have to send delegations of city attorneys to Washington to go before a
panel of telecommunications specialist[s] at the FCC, on what may be [a] very broad question of
State or local government rights. In reality, this preemption provision is an unfunded mandate
because it will create major new costs for cities and for States.
traditionally relegated to state law, in an area basically the concern of the States." Id. at 78, 95 S.Ct. at
2088.
13
At this point in the legislation's development, the provisions that eventually became § 253 were
designated as § 254.
141 Cong. Rec. S8170 (daily ed. June 12, 1995). Senators Feinstein and Kempthorne felt that the proper
venue for resolving these disputes was the local federal district courts. See id. at S8171. Together, they
sponsored amendment No. 1270 to the bill, for the purpose of "strik[ing] the authority of the Federal
Communications Commission to preempt State or local regulations that establish barriers to entry for
interstate or intrastate telecommunications services." 141 Cong. Rec. S8305 (daily ed. June 14, 1995). The
Feinstein-Kempthorne amendment was met with opposition from those who felt that the FCC remained the
proper body to resolve these issues. See 141 Cong. Rec. S8173 (daily ed. June 12, 1995) (remarks of Senator
Pressler), S8174 (remarks of Senator Hollings).
In response, Senator Gorton proposed amendment No. 1277, a second-degree amendment to the
Feinstein-Kempthorne amendment, which was intended to be a compromise provision. First, Senator Gorton
noted that the Feinstein-Kempthorne amendment, and therefore his own second-degree amendment to it, was
limited: "It does not impact the substance of the first three subsections at all, but it does shift the forum in
which a question about these three subsections is decided." 141 Cong. Rec. S8212 (daily ed. June 13, 1995).
Senator Gorton then explained precisely the scope and purpose of his amendment:
I join with the two sponsors of the Feinstein amendment in agreeing that the rules that a city
or a county imposes on how its street rights of way are going to be utilized, whether there are to be
above-ground wires or underground wires, what kind of equipment ought to be used in excavations,
what hours the excavations should take place, are a matter of primarily local concern and, of course,
they are exempted by subsection (c) of this section.
So my modification of the Feinstein amendment says that in the case of these purely local
matters dealing with rights of way, there will not be a jurisdiction on the part of the FCC immediately
to enjoin the enforcement of those local ordinances. But if, under section (b), a city or county makes
quite different rules relating to universal service or the quality of telecommunications services—the
very heart of this bill—then there should be a central agency at Washington, DC, which determines
whether or not that inhibits the competition and the very goals of this bill.
...
[The Gorton amendment] retains not only the right of local communities to deal with their
rights of way, but their right to meet any challenge on home ground in their local district courts. The
Feinstein amendment itself ... would deprive the FCC of any jurisdiction over a State law which
deliberately prohibited or frustrated the ability of any telecommunications entity to provide
competitive service. It would simply take that right away from the FCC, and each such challenge
would have to be decided in each of the various Federal district courts around the country.
The States retain the right under subsection (d) to pass all kinds of legislation that deals with
telecommunications providers, subject to the provision that they cannot impede competition. The
determination of whether they have impeded competition, not by the way they manage trees or rights
of way, but by the way they deal with substantive law dealing with telecommunications entities. That
conflict should be decided in one central place, by the FCC. The appropriate balance is to leave
purely local concerns to local entities, but to make decisions on the natural concerns which are at the
heart of this bill in one central place so they can be consistent across the country.
141 Cong. Rec. S8306, S8308 (daily ed. June 14, 1995). The Senate voted down the Feinstein-Kempthorne
amendment and then adopted the Gorton amendment by a voice vote, id. at S8308, and consequently
subsection (d) was amended to the form in which it exists today.
With the benefit of Senator Gorton's remarks, it is clear that subsection (d), despite its less-than-clear
language, serves a single purpose—it establishes different forums based on the subject matter of the
challenged statute or ordinance. Accordingly, we hold that a private cause of action in federal district court
exists under § 253 to seek preemption of a state or local statute, ordinance, or other regulation only when that
statute, ordinance, or regulation purports to address the management of the public rights-of-way, thereby
potentially implicating subsection (c).14 All other challenges brought under § 253 must be addressed to the
FCC.
3. Application of § 253 to BellSouth's Claims
BellSouth brought these lawsuits against the Cities, alleging that their ordinances violated §§ 253(a)
and (c). These ordinances specifically state that their purpose is to set out the rules governing the Cities'
management of their rights-of-way, and so the district court is the proper forum for BellSouth's complaints.
In both cases, the district court considered whether the individual sections of the ordinances fell within the
parameters of (c), but never addressed, in the first instance, whether the ordinances violated subsection (a).
Accordingly, we remand these cases to the district court for further proceedings to determine whether the
sections of the ordinances that are not preempted by Florida state law violate subsection (a) because they
"may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service." If the district court finds that any of these provisions do violate (a), then the
Cities shall have an opportunity to establish that the provisions are nevertheless not preempted because they
fall within the safe harbor provided in (c).15 The district court should reconsider the issue of severability after
it has determined the full extent to which the ordinances are preempted by state and federal law.
14
"When an examination of one or more of the Cort factors unequivocally reveals congressional
intent, there is no need for us to trudge through all four of the factors." Ayres, 234 F.3d at 524(punctuation and citations omitted).
15
We are not requiring that a district court always make findings under § 253(a) before addressing the
§ 253(c) question. Judicial economy may best be served by initially conducting the § 253(c) analysis in
cases in which the court can easily determine that the ordinance is not preempted because it falls within
the § 253(c) safe harbor. However, before declaring an ordinance preempted, a court must conduct both
the § 253(a) and the § 253(c) analyses. Here, the district court erred when it declared the ordinances
preempted without first determining that BellSouth had established its prima facie case under § 253(a).
C. The Cities' Counterclaims
Both Cities appeal the district court's grants of summary judgment in favor of BellSouth on the issue
of the Cities' individual counterclaims. Palm Beach had sought payment of fees under the provisions of its
ordinance, and Coral Springs had sought to enforce an ordinance that gave it the option of purchasing the
telecommunications facilities that BellSouth had built in its rights-of-way. The district court summarily found
these counterclaims to have been preempted by state and federal law. We remand these counterclaims to the
district court for reconsideration in light of our clarification of the preemptive scope of the relevant state and
federal laws. We, however, express no opinion on the merits of these counterclaims.
III. CONCLUSION
In this appeal, the Cities challenge the district court's finding that sections of their ordinances were
preempted by Florida state law and by § 253 of the Telecommunications Act of 1996. BellSouth
cross-appeals the district court's decisions not to find the ordinances preempted in their entirety. We hold that
specific subsections of the ordinances are preempted by § 337.401 of the Florida Statutes, but that others are
valid exercises of local authority under the Florida scheme. We also hold that § 253 of the Act creates a
private right of action only for parties seeking preemption of a state or local statute, ordinance, or other
regulation that purports to be a management of the public rights-of-way. We further hold that the district
court erred when it failed to consider whether the ordinances violated § 253(a). For these reasons, we
AFFIRM the district court's judgments in part, REVERSE in part, and REMAND to the district court for
further proceedings.16
16
Should the relevant Florida law change between the date of this opinion's issuance and the date on
which the district court issues its order, the district court is instructed to reevaluate the state-law
preemption question in light of the new law, guided by the approach we have taken here.