*1 of its Regardless be condoned. DETROIT, Plaintiff-Appellant virtue, and will does occur bargaining (98-2034), (98-2035), advantages for to its Plaintiff likely continue due While prosecutors and defendants. both v. continues, it bargaining plea preindictment DEARBORN, Defendant-Ap CITY OF encounter defen- perilous remains (98-2034), Third-Party pellee Plain Defendants, formally— or—more dants. (98-2035), tiff-Appellant Ameritech defendants, are faced with potential Third-Party Michigan, Incorporated, They are liberty property. loss of (98-2035). Defendant-Appellee sys- a complicated procedural faced with adversary. knowledgeable a more tem and Nos. 98-2035. Gouveia, 189, 104 S.Ct. 467 U.S. Cf. Appeals, United States Court of short, these defendants need 2292. In Sixth Circuit. to counsel order should be entitled navigate these waters. troubled 5, 1999 Argued: Nov. right to counsel
The Sixth Amendment and Filed: March Decided meet chal- historically has evolved to Rehearing En Banc Rehearing and lenges by changing legal para- presented 1,May Denied Ash, U.S. at S.Ct. digm. (noting the extension of the Sixth right to resulted from Amendment counsel patterns procedure of criminal
“changing gen- tended investigation that have pretrial might appropri-
erate events trial
ately parts considered to be
itself’). justice system The criminal now changing so defendants prosecutions
face critical stages their Amend-
prior to indictment. The Sixth purpose protect
ment’s is to underlying their stages prose-
defendants critical Thus,
cution. the Sixth Amendment dur- guarantee
should to counsel
ing preindictment Pre- plea negotiations.
cedent, however, prevents me from en- position
dorsing logic demands. urge
I to re- would bright
consider its line test for attachment Amendment counsel Sixth Illinois, in Kirby
enunciated
406 U.S.
(1972),
and United
467 U.S.
States
104 S.Ct.
(¡19 (argued), Sidley David F. Graham & Austin, IL, Chicago, for TCG Detroit. briefed), alleged that had also U.S.C. 253. TCG (argued Malone William Eaton, DC, City’s requirement viola De- constituted Washington, Van Miller & (briefed), Dearborn, MI, of 42 1988. The district Walling bra C. preju without court had earlier dismissed City of Dearborn. claim, alleged dice TCG’s *3 briefed), (argued Fink Joseph A. Michigan Telecommuni a violation of Dickinson, (briefed), Dempsey M. John invoking Act of cations Moon, Freeman, & Wright, Van Dusen 1367(c). to re ruling, It adhered (briefed), MI, A. Holmes Michael Lansing, fusing that claim “based on to reinstate MI, Detroit, Michigan, for Ameritech jury over differ concern of confusion Lewis, (briefed), Hill, H. Polzin Charles applicable the federal ing standards Tait, MI, Adams, Birmingham, & Goodrich v. City claims.” Detroit TCG of (briefed), Hill, Oke- Coy S. Clark Roderick (E.D.Mich. Dearborn, (briefed), mos, MI, C. Marsh Richard 1997). MI, Hill, Detroit, for TCG Detroit. Clark TCG, with dispute In the course of its (briefed), Fraser, Tre- E. Marvin David City demanded franchise fee also MI, Foster, bilcock, Lansing, Davis & provider, Ameritech existing (briefed), Messing Gary Harvey J. L. Field (“Ameritech”), resulting a suit (briefed), Loomis, (briefed), A. Ault James with which has been consolidated TCG’s Ewert, Lansing, Parsley, Gotting, Davis & gave claimed that the Act case. The (briefed), MI, J. Lichtenstein Swi- Michael a fee. The authority charge Freidman, dler, Berlin, & Wash- Shereff granted summary judgment court district (briefed), DC, A. Handzo ington, David grounds Ameritech on the (briefed), E. & Maynard Deanne Jenner Ameritech was law under which DC, Block, Washington, for Amici Curiae. franchise incorporated, original and its imposition the local of granted, prohibits BOGGS, Circuit Before: GUY al- fees on who had franchise HOOD, Judge.* Judges; and District ready by a franchise Michigan. City appeals. State BOGGS, J., opinion delivered the court, HOOD, J., joined. in which D. I
GUY, 626), (p. separate delivered a J. opinion part dissenting concurring an agreement TCG made in part. lay fibre-optic Detroit Edison to telecom- existing munications cable latter’s
OPINION
The cable
rights-of-way.
electrical conduit
by
was to be owned Detroit Edison and
BOGGS,
Judge.
Circuit
part
leased back to TCG for
use
(“TCG”),
Detroit
a telecommunica-
TCG
services.
providing telecommunications
provider, appeals
tions
the district court’s
eight
of a pro-
TCG had laid almost
miles
judgment
City of
grant
summary
to the
miles of cable
posed
twenty-seven
total
(“the
City”)
Dearborn
on the issue
agreement
City, advised
when the
requirement
City’s
whether
Edison, objected
demanded
by Detroit
pay
City a certain franchise fee for
proceed
fee
work could
before
telecommuni-
privilege
laying fibre-optic
further.
limits,
pursuant
cable within its
cations
ordinance,
began negotiations
city
Tele-
TCG and
violates the Federal
(“the Act”),
City passed an ordi-
(during
which the
communications Act
*
Hood,
tucky, sitting by designation.
Joseph
M.
United States
Honorable
Judge
Ken-
District
for the Eastern District of
authorizing it
collect the fees
nance
franchise’s terms. The
had ar-
and,
question)
gued, unsuccessfully,
June
that the 1908 amend-
agreement,
constitution,
reached a tentative
memorial-
to Michigan’s
ments
expand-
City’s
of that
proposal
ized in the
date
ing
municipal
rights-of-way,
over
for the
provided
payment
TCG. This
applied
could be
a pre-existing
char-
revenues, on
gross
top
of 4% of its
tered company.
$2,500
$50,000
up
one-time fee
The district court noted that the case is
City’s
reimbursement
administrative
impression
Circuit,
one of
first
this
regional
accepted
costs. TCG’s
counsel
having
court never
had occasion to consid-
proposal
principle,
suggesting
implications
er the
of the Act’s “fair and
them,
(among
amendments
compensation”
provision.
reasonable
agreement would be modified
*4
ruling,
Since the district court’s
this court
changes
reflect
future
federal
state
has
occasion to
a
consider
case
laws),
22,
September
a letter dated
is,
which the Act
at least in part, implicat-
1995.
ed. See
Bell
v.
Tel. Co. Climax
Meanwhile, legislation that would be-
Co.,
(6th Cir.1999),
Tel.
726
F.3d
the
was
in Congress
come
Act
introduced
amended,
(6th Cir.2000).
Before
controversy requirement associated
however,
case,
court
in this
this
sented
”).
requirement of
Article III....
If this
jurisdiction.
be
that it has
must
assured
satisfied,
is
jurisdiction
Article III is
of
question
The district court raised
Corp.,
92-
lacking.
In re
Nos.
under
See
GF
standing
whether
has
sue
(6th
Act,
92-3585,
*2
§
a
1993
at
implies
held that
253
WL
1993)
(unpublished opinion).
claiming Cir. June
of action for those
private right
jurisdiction
lacking, the court
barrier-to-entry
See
Detroit Where
is
injury.
dismiss
case.
Dearborn,
at
must on its own motion
F.Supp.
v.
977
839.
12(h)(3).2
other- Fed.R.Civ.P.
But other district courts have held
Austin,
can
The
has said that a court
1.
AT
v.
2.
First Circuit
In
& T Communications
issue,
§
context
a
253
avoid this
granted AT &
Texas
court nevertheless
district
claim, but its discussion first confuses wheth
injunction against
an
T an
the enforcement of
sue,
standing
plaintiff
a
whether
er
has
i.e.
that,
argued,
company
Austin ordinance
(a jurisdictional
private right
a
of action exists
(c)
253(a)
by
violated both
of the
plaintiff
a
question),
a
states
with whether
municipal
requiring
providing
consent
its
upon
be
which relief can
cause of action
so,
doing
In
telecommunications services.
one),
(a non-jurisdictional
and then
jurisdiction
Suprem-
court found
statutory and
relation between
misstates the
Clause,
acy
ruling
preempted
that
the Act
standing.
Bos
Article
See Cablevision
III
regulatory authority, and
AT & T
local
that
Comm'n,
ton,
Improvement
184
Inc. v. Public
challenge
those
could
such
on
(1st
1999).
III
n. 9
Cir.
Article
F.3d
standing
100
grounds; although
agreed
with the Arizona
lacking
may indeed
where statu
be
T
Lightwave, and AT &
court in GST Tucson
exists,
tory standing
First
cor
and the
Circuit
conceded,
private
that
no
also
the Act confers
Wildlife,
rectly
Lujan v.
504
cites
555,
Defenders of
action,
right
also
Texas
S.Ct.
U.S.
primary jurisdic-
nor
found neither exclusive
(1992),
proposition.
It is
for this
L.Ed.2d 351
F.Supp.
at
The
tion in the FCC.
937-39.
however,
thing,
entirely
to assert
different
Texas
approach
same
was followed
another
standing,
plaintiff
III
that
Article
Communications,
T
Inc.
case.
AT &
jurisdiction,
provides
where a statute
that
deprives
Dallas,
We
F.Supp.2d
very plaintiff
standing
to sue.
however,
not,
persuaded
juris-
Lujan
are
such
on its head in
cannot be turned
event,
analysis provides
proper
basis
dictional
manner.
Pharmaceuticals,
held in Merrell Dow
proceeding.
case,
Tucson,
right
implied.”
In this
tele- vate
of action be
GST
GST
provider
Tucson,
communications
claims that a mu-
nicipality
However, the district court
judg-
whose
aged
by setting
the provider,
rates for
quotes
ment we review here
to telling ef-
that are
competitively
different
253(d),
fect
Senate
debate on
as that
discriminatory,
charging
biased
subsection is intended to relate to the safe
it unfair and unreasonable rates. As the
(c).
harbor
During
of subsection
the de-
noted,
court
GST Tucson
there is no bate, Senator
explained:
Gorton
authority in
express
pri-
this section for
is
preemption
There
no
...
for subsec-
right of
950 F.Supp.
vate
action. See
at
(c)
entitled,
tion
which is
“Local Gov-
question
is
969.
then whether
Authority,”
ernment
and which is the
implied.
disagreement
be-
preserves
subsection which
gov-
to local
court,
tween that
and Michigan
district
public
ernments
control over
their
TCG,
court in
the meaning
concerns
rights
way.
It accepts
proposi-
language
253’s
as well as the statute’s
...
that these
powers
local
should
broader structure.
locally,,
any challenge
retained
quoted
The subsections of
above
to them take place in the Federal dis-
(d)
raise
questions.
provide
several
Does
trict court
locality
in that
and that the
jurisdiction
for exclusive
the FCC
Federal Communications Commission
(a)
(b),
violations of
or is a
not be able to
preempt
actions.
(d)’s
also implied?
of action
Does
(quoting
Rec.
Cong.
(c)
of mean
a private right
omission
(June
1995)
S 8213
(emphasis
added
action,
jurisdiction, applies
instead of FCC
court)).
the district
(c)?
(c)
to violations of
Or is
omitted from
Moreover,
persuaded
we are
(d)
by the dis-
merely
because it
provides a safe har-
*6
discussion,
trict court’s careful
which need
that,
bor for municipalities, such
to be
duplicated here,
not be
of the
(c)
actionable, a violation of
be a
must
Ash,
Court’s
four-factor test
Cort v.
(a), subject
violation of
(perhaps solely) to
66, 78,
2080,
U.S.
95 S.Ct.
legislative Ross, 99 S.Ct. Touche U.S. attempts to characterize case, fact in addition to the 2479. In this prohibition, as itself City’s ordinance n that such right plainly pur 253(a). serves the Appel prohibited scheme, lan legislative pose then describes lant’s Brief at 18-19. TCG clearly suggest Act guage seems as the franchise required the fee obtain private right intended that Congress conditionally that lifts afterthought, which 255, man action be available. Section sophis prohibited prohibition. that This is disabilities, dating by persons with access apply a fran try. provider must there be no provides fee; shall expressly chise; a franchise assesses to enforce that sec right of action can paid, given. no fee no franchise That requirements. See 47 U.S.C. tion’s prohibition as [within not “be described 255(f). resulting implication 253(a) is at 19 meaning ].” section Id. 253(c) concerning neighboring section (quoting AT & T Communications of fair, reasonable, assessment Southwest, Austin, fees, (W.D.Tex.1997)). competitively neutral The is limiting language conspicu is not, here in AT & T sue Communica absent, right. such a ously does confer tions, withholding of con municipality’s something sent to franchise application, Noonan, Judge con- recognize We TCG, vis contemplated á vis never Cablevision, curring in the result challenge rather TCG’s a fee but 252(e)(6), convinced, large by §§ part face, explicitly appear, would on 258(b), 274(e), always that the Act is permit, if “fair and reasonable” *7 contemplates private it explicit when “competitively and neutral non-discrimina re- action. But these subsections tory.” alternative, to in the legal fer remedies question then is whether the procedures and above or remedies The over by City the from the is “fair and rea available from fee assessed Commission meaning compensation,” within the state commissions. The subsection sonable action, is, authorizing concluding § 253 of the Act. In it Commission examined, 253(d), rejected, § omits reference to vio- district court first and pointedly 253(c). Thus, is phrase, § we it is TCG’s contention that this lations of believe Act, say reading given not in the should be incorrect defined 253(c) “just meaning § into as the words and rea action “runs counter same Act, § in the Pole Attachment statutory to the scheme 253 itself.” sonable” 253(c) (which § § applies F.3d 108. A violation of cable televi 253(a); providers’ poles). use of utilities’ The might not involve sion violating well “just in rise latter defines and reasonable” unfair or fees need not unreasonable entry, recovery terms of of additional costs borne erecting to the level of barrier to pole attach by utility providing only while the latter violation authorizes Commission did pursuant Congress act to ments. The court noted 253(d). comparable not to insert a definí- choose Act, “compen- impermissible in the that “costs” and entry barrier to in viola- same, 253(a). only and sation” are not tion of totality of the could illumi- circumstances Therefore, the district court’s dismissal “fair and nate whether fee is reason- of TCG’s suit on City motion able.” summary judgment proper. was in question
The court found the fee to be reasonable, fair considering both and IV (twenty-seven contemplated amount use original its incarnation as Michi miles), the amount that other gan Telephone State Company, Ameritech (three willing be pay would others had sought had and a franchise fees), to similar and agreed the fact that upon from the incorporation, state its agreed negotiations earlier 1904, pursuant to Michigan Public it a fee almost identical what was now (“Act 129”), a passed law in 1883 pro challenging as unfair.3 The court’s exami- organization vide of telephone ser question thorough nation of this and companies. vice of Act 129 reasoning its sound. relevant to case at bar reads fol as lows: also complains that since the Every corporation power shall have City charge did not Ameritech a franchise to construct and maintain lines of wire fee, doing case so TCG’s is discriminato material, or other for use in the trans- Act, ry, a violation of both the 47 U.S.C. telephonic messages along, mission of 253(c), and, consequence, of U.S.C. over, across, or any under public places, But, pointed 1983. the district court highways, streets and un- across or out, fee, did seek to such a charge state, der of the waters with resulting third-party against suit necessary all erections and fixtures this court. Ameritech also before Provided, therefor: That the same shall fact prevailed that Ameritech before injuriously pub- interfere other the district court in its contention that streets, places, lic uses of the said prohibits subject- law highways, navigation of said wa- ing charged it to the fee others ters; construct, provide, and furnish thereby does not mean that is instruments, devices, and facilities for discriminating Ameritech’s favor. Pos- use in the transmission of such mes- if sibly, enjoys Ameritech thus a state- construct, sages, maintain, and to fees, mandated freedom from its com- operate telephone exchanges and sta- petitive position strengthened, tions, and car- generally conduct and able, might theory, to undercut ry on su- providing the business so, competition; if it the result might did communication pervising by telephone, entry be a barrier to But newcomers. *8 and the mes- furnishing also business issue, this would different be senger in service cities and towns. has not this alleged that has occurred. 129,1883. Public Since the only district court found the The court noted district that the reasonable, be fair impo implied fee to and its limitation in Act was au- 129 the discriminatory thority municipality regulate sition be neither in of a in the intent nor, itself, welfare, in anti-competitive and of in the general interest of as the effect, correctly rejected Michigan Supreme the court also when the Court held argument the attempted TCG’s fee constituted of Benton to re- Harbor same; question City's appear part 3. The amounts in are of the the vari- to have been made are, provisions remaining position, subordinate the details of ous final over, more- negotiations settled when broke down do not unclear. revisions, law under although the tional to the establishment quire its own consent city: had been made which the earlier contracts system within the telephone of a authority thereby as to future con- changed was this statute sole “Under exercise court found Public municipality proper is the tracts. district The it, protect sufficiently inherent in police power, Acts and 264 to be similar to im- concerning It has no Public Act public.... apply case law Michigan Co. Tel. to Act pose (governing utility companies) conditions.” other Bell). Benton, N.W. 121 Mich. It Michigan found (governing in the fact support approach for General, reasoning Attorney Michigan that Act 129 was abro- City argues The way, Village just in had advised Michigan to the Consti- gated by revisions attempt in that its to im- Roseville tution, Article adopted in of which was a franchise fee on Ameritech pose provided: §VIII existing state given invalid the latter’s or No association person, partnership, franchise. utility operating public corporation of the have the to the use shall looked to properly streets, public or highways, alleys other Michigan interpretation law for the of the city, township or places village of any retroactivity of constitutional revisions conduits, wires, or poles, tracks pipes, contracts, sup- pre-existing and found no consti- duly the consent of the without It position. correctly port City’s city, village or authorities tuted summary judgment to Ameritech. a local busi- township; nor transact obtaining therein without first ness V city, village
franchise therefor cities, township. of all the judg- For reasons foregoing townships to the reasonable villages are ments of the district court each case streets, alleys public control of their AFFIRMED. cities, places hereby reserved'to such townships. villages JR, GUY, Judge, RALPH B. Circuit all sub- This retained part dissenting concurring part. respects by Michigan
stantial
Constitu-
§ 29.
tion of
Art. VII
Ameritech
fully
I
to affirm
concur
decision
do not
contends
the revisions of 1908
summary judgment
favor of Ameritech.
retroactively.
apply
If the
is correct
there is an
court
have
similar lawsuits involv-
There
action, then I
implied private right of
con-
ing
under
utility companies organized
analysis
respect
cur
the court’s
counterpart
Public Act
However, for
rea-
appeal
of TCG.
governing
for utilities
Public Act
by Judge
sons set forth
the concurrence
companies.
telecommunications
In such
Boston,
Inc. v.
Noonan
Cablevision of
suits,
Commission,
Improvement
Public
urged
position
taken a
similar to what is
(1st Cir.1999),
I
F.3d
107-09
believe
case,
by Ameritech in this
and the district
private right
there is no
of action.
applied
Michigan Supreme
court
here.
Lan-
reasoning
Court’s
*9
Co.,
sing
Mich.
Power
(1914); Village
Mich.
cases held that
rights were not the constitu- affected