DocketNumber: No. 78293-8
Citation Numbers: 157 Wash. 2d 545
Judges: Johnson, Madsen
Filed Date: 8/10/2006
Status: Precedential
Modified Date: 8/12/2021
¶1
This case involves two certified questions from the United States District Court for the Western District of Washington. First, we are asked to determine what the legislature intended when it used the term “aerial supporting structures” in RCW 35.99.060(3)(b). Second, we are asked to determine if a telecommunications
FACTUAL AND PROCEDURAL HISTORY
¶2 Defendant, the city of Kent, required plaintiff, Qwest Corporation, to relocate its aerial telecommunications facilities in three different areas and move them to underground locations pursuant to RCW 35.99.060(1). The first project was located along First and Fourth Streets in Kent, the second project was located along Russell Road in Kent, the third project was located along Pacific Highway in Kent. Qwest complied with Kent’s requirement and, pursuant to RCW 35.99.060(3)(b), submitted a bill to Kent for the difference in costs between a hypothetical aerial to aerial relocation and the actual aerial to underground relocation for each project. According to Qwest, it is entitled to $538,015.58 from Kent for all three projects.
¶3 Although Kent agrees Qwest is entitled to reimbursement under the statute, Kent disputes the amount of reimbursement it owes. Accordingly, Kent refused to pay Qwest’s bill. Qwest filed an action in United States District Court. Both parties filed cross-motions for partial summary judgment on the statutory interpretation issues. The United States District Court, after hearing arguments on the motions, certified the questions to this court.
(A) Does the term “aerial supporting structures” as used in RCW 35.99.060(3)(b) mean only
(1) the wide variety of telecommunications and electrical poles, “glu-lams,” “push-brace” poles, “H-frames,” towers, and similar structures to which providers may attach their wires in order to suspend them in the air, or does it also include
(2) all other attachments and hardware that keep telephone wires in the air, including but not limited to strand, bolts, “cross-arms,” “guy wires,” brackets, and other hardware associated with these items?
(B) Where aerial to underground relocation of authorized facilities is required by a city or town under RCW 35.99.060(1), for service providers with an ownership share of the “aerial supporting structures,” is the city required to reimburse the full additional incremental cost of underground compared to aerial location or only the additional incremental cost proportionate to the percentage of “aerial supporting structures” owned by the service provider?
ANALYSIS
¶4 Telecommunications companies, when placing their facilities,
Aerial Supporting Structures
¶5 Qwest argues the term “aerial supporting structures” is not limited to poles or pole-like structures but instead includes strand, “down-guys,” cross-arms, and any other attachment hardware used to keep aerial cable supported.
¶7 RCW 35.99.060(3)(b) reads, “[w]here aerial to underground relocation of authorized facilities is required by the city or town under subsection (1) of this section, for service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in the approved tariff if less, will be paid by the city or town requiring relocation.” (Emphasis added.) When interpreting statutory language, our goal is to fulfill the intent of the legislature. In ascertaining this intent, the language at issue must be evaluated in the context of the entire statute. We avoid interpretations that are strained, unlikely, or unrealistic. Simpson Inv. Co. v. Dep’t of Revenue, 141 Wn.2d 139, 149, 3 P.3d 741 (2000).
Additional Incremental Cost
¶9 Qwest argues that the language of RCW 35.99-.060(3)(b) requires the city to reimburse a service provider for the full value of the difference between an aerial to aerial relocation and an aerial to underground relocation. Qwest contends this is because the increased cost of undergrounding is not related to the number of aerial structures owned but results from digging the trench for the underground facilities; laying the duct, conduit, and cable; installing new equipment vaults; splicing underground cable to the existing system; and paying expenses arising from mobilization and general condition costs.
¶10 Kent argues that the statute requires a city or town to reimburse the service provider for a proportionate share of the increased cost of undergrounding based on the share of aerial supporting structures owned by the provider. Kent maintains the reimbursement is a way to offset the expense a service provider sustains by planning, designing, erecting, and maintaining poles. Kent asserts that because a service provider does not incur these expenses when it attaches its cable to someone else’s pole, the legislature did not intend to reimburse the provider in that circumstance.
¶11 The language of RCW 35.99.060(3)(b) provides, “[w]here aerial to underground relocation of authorized facilities is required by the city or town under subsection (1) of this section, for service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in the approved tariff if less, will be paid by the city or town requiring relocation.” (Emphasis added.) Statutory interpretation requires this court to give effect to the legislature’s intent. When the language of a statute is unambiguous, the legislative intent is apparent. Where the legislature omits language from a statute, whether intentionally or inadvertently, this court will not read into the statute the language it believes was omitted. State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006).
¶12 Neither party asserts that any phrase in the statute, other than “aerial supporting structures,” is ambiguous. When a service provider has an ownership share of “aerial supporting structures,” the city must reimburse the provider the additional incremental cost. The term “incremental cost” is not defined in the statute or in the definitions section of chapter 35.99 RCW. In the absence of a given definition, we turn to a standard dictionary to ascertain the plain and ordinary meaning of a term. State v. Watson, 155 Wn.2d 574, 579, 122 P.3d 903 (2005). Incre
CONCLUSION
¶13 The term “aerial supporting structures” refers to poles and pole-like structures. RCW 35.99.060(3)(b) requires a city to reimburse a service provider for an aerial to underground relocation of its facilities when the service provider owns a portion of the aerial supporting structures as defined above. The amount the city is required to reimburse the service provider is the difference between an estimated aerial to aerial relocation and the actual aerial to underground relocation of the same facilities.
Alexander, C.J., and Bridge, Chambers, Owens, and J.M. Johnson, JJ., concur.
Facilities are defined as “all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services and cable television services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services and cable television services.” RCW 35.99.010(2).
Strand is steel wire attached directly to cable in order to support the cable between poles. Cable is not strong enough to support itself and strand is always used for aerial cable. When poles are perfectly in line, the cable and strand are attached to the poles using a variety of fasteners such as nuts, bolts, washers, and clamps. However, when one pole is out of line, attaching the cable to the pole would exert a sideways as well as downward force upon the pole. Here, a company might attach a cross-arm to a pole. A cross-arm is a piece of wood attached to a pole that sticks out from the pole far enough so that the cable may be attached to the cross-arm without changing the cable’s direction. This keeps the cable in a straight line and prevents it from exerting the sideways and downward force upon the pole. A company could also attach the cable to the pole itself and then use a down-guy, a piece of galvanized steel, attached to the pole in the opposite direction to offset the force exerted by the cable.
H-frames consist of multiple vertical poles attached by a cross-brace. Aglu-lam is generally the same height as a transmission pole but is composed of multiple planks or boards glued together for structural strength. It looks more like a construction beam than a pole.
Qwest defines mobilization cost as “the cost associated with physically getting project materials and construction equipment to a project site at the beginning of a project.” Qwest defines general conditions costs as “the costs associated with the project as a whole but not specifically allocated to a particular task, such as the costs associated with project superintendents and engineers, ongoing equipment rentals or maintenance, safety and flag personnel to direct traffic, equipment and material supply storage, etc.” Pl.’s Br. at 18, nn.7 & 8.