III. Discussion

A. Standard of Review for Motions to Dismiss

A motion to dismiss⁶ essentially requires the Commission to determine whether the party bringing the motion wins based solely on undisputed facts and matters of law. The Commission treats such motions as a court would treat motions for summary judgment in civil practice. (Westcom Long Distance, Inc. v. Pacific Bell et al., D.94-04-082, 54 CPUC2d 244, 249.) The opposing party may not rely upon allegations or denials in its pleadings alone, but rather, must set forth the specific facts showing that a triable issue of material fact exists. (Code of Civil Procedure § 437c(o)(2); see also Sangster v. Paetkau (1998) 68 Cal.App.4^th 151, 161.)

B. Crow Development's Motion to Dismiss

Crow Development contends in its motion that the complaint should be dismissed as a matter of law. Under one of the complaint's theories, Crow Development is itself a public utility, and as such, has violated various statutes. Under the other theory, Crow Development is not a public utility but has violated various provisions of law (including Commission orders) applicable to non-utilities. We will deal with those two theories in sequence.

1. Is Crow Development Operating as an Uncertified Public Utility?

a) Crow Development's Position

Crow Development brings its motion to dismiss on the grounds that Crow Development is not a public utility over which the Commission has jurisdiction because it has not "dedicated" its property, including the easements providing utility service to the facility parcel, to a public use as defined by law. Crow Development also argues that it is not delivering telephone messages through easements, conduits and telephone lines because it does not own telephone cabling or other devices that would permit it to transmit telephone messages, and a conduit alone is not capable of transmitting a telecommunications message.

In support of its motion, Crow Development has submitted a declaration by William H. Lane, Jr., the managing general partner who is primarily responsible for the day-to-day operations of Crow Development. Lane states that, contemporaneous with the 1985 acquisition of Park Place, Crow Development and Winthrop Operating entered into the Reciprocal Easement Agreement among the Park Place landowners and their successors-in-interest. This Agreement governs, among other things, construction, operation, access, parking, and certain easements for the benefit and to the burden of the facility parcel and development parcel. The Lane declaration also makes certain legal conclusions and arguments which we do not rely on here.

b) Complainants' Response

Complainants did not file any responsive declaration setting forth specific facts showing a triable issue of material fact. (See Sangster v. Paetkau, 68 Cal.App.4^th at 161.) Rather, complainants argue that the verified complaint and the admissions in the Lane Declaration demonstrate that there is a triable issue as to whether Crow Development controls easements and facilities on its property that are dedicated to the public use. According to complainants,

"There is no dispute in this case that Pacific has telephone facilities in conduits across CWDLP's [Crow Development's] property and that CoxCom has cable television facilities in the conduits as well. There is also no dispute that tenants in the Jamboree Buildings could not obtain local exchange telephone service from Pacific (or any local exchange carrier) or cable television service from CoxCom if these companies did not use the conduits owned and controlled by CWDLP. Finally, there is no dispute that CWDLP had denied Pacific, CoxCom and Cox access to the conduits and, thus, CWDLP has sole and complete control over the conduits.




"These facts establish that there is a material issue of fact as to whether CWDLP, had dedicated its facilities to the public use . . ." (Complainants' Opposition to Crow Development's Motion to Dismiss at pp. 7-8.)

c) History of the Dedication Requirement

In 1912, the California Supreme Court held that a member of the public could not demand service from a distributor of water if the distributor had not dedicated its water rights to public use. (Thayer v. California Development Company (1912) 164 Cal. 117, 126.) Since its decision in Thayer, the Court has consistently interpreted the statutory definitions of public utilities to apply only to entities that have dedicated their property to public use. (See, e.g., Associated Pipe Line Co. v. Railroad Commission (1917) 176 Cal. 518, 523-525; Allen v. Railroad Commission (1918) 179 Cal. 68, 89; Cal. Water & Tel. Co. v. Public Utilities Commission (1959) 51 Cal.2d 478, 494.)

The test for determining whether dedication has occurred is:

"whether or not [a person has] held himself out, expressly or impliedly, as engaged in the business of supplying [a service or commodity] to the public as a class, not necessarily to all of the public, but to any limited portion of it, such portion, for example, as could be served by his system, as contradistinguished from his holding himself out as serving or ready to serve only particular individuals, either as an accommodation or for other reasons peculiar and particular to them." (Van Hoosear v. Railroad Commission (1920) 184 Cal. 553, 554, citations omitted.)

In 1960, the California Supreme Court re-examined the dedication requirement in Richfield Oil Corp. v. Public Utilities Commission (1960) 54 Cal.2d 419. The Court noted that if it were called upon to decide the question for the first time in light of modern constitutional law principles, it would have serious doubts that the broad language of § 216 should be interpreted as including the limitation of dedication. (Id. at 428.) "In view of the history of the act and the substantial reliance on its consistent interpretation and application by this court and the commission for more than 40 years, however, it must be concluded that the Legislature by its repeated reenactment of the definitions of public utilities without change has accepted and adopted dedication as an implicit limitation on their terms." (Id. at 430.)

In Greyhound Lines, Inc. v. Public Utilities Commission (1968) 68 Cal.2d 406, the Court again noted that the requirement of dedication as a condition precedent to regulation as a public utility is a judicial doctrine, supported by constitutional principles which have now passed into history. Thus, the Court stated that it would be inappropriate "to extend its restraining power further than logic and precedent require." (Id. at 413.) Nevertheless, the Court found that the focal point in cases dealing with the Commission's authority to require service extensions "has regularly and properly been the question of dedication. It was early decided and remains the law that the perimeter of commission authority to order service modifications is staked out by the limits of a utility's dedication or devotion of its property to public use." (Id. at 411.)

Whether or not dedication has occurred is a factual issue, to be determined on a case-by-case basis. Courts caution that "to hold that property has been dedicated to a public use is not a trivial thing, and such dedication is never presumed without evidence of unequivocal intention." (Allen, 179 Cal. at 85, citations omitted.) However, such dedication may be inferred from action and need not be explicit. (Greyhound Lines, 68 Cal.2d at 414, citing Yucaipa Water Co. No. 1 v. Public Utilities Commission (1960) 54 Cal.2d 823, 827.)

Numerous cases have held that a landlord's provision of services to tenants does not constitute dedication to public use. In Story v. Richardson (1921) 186 Cal. 162, 166-167, the Court considered the public utility status of the owner of an office building who supplied electrical energy to tenants of his own building, as well as to non-tenants occupying nearby property. The Court held that the plaintiff was not a public utility because he had not devoted his facilities to public use. "The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefiniteness or unrestricted quality that gives it its public character." (Id. at 167, quoting Thayer v. California Development Company, 164 Cal. at 127.) The Court concluded, "There was no such general offer on the part of plaintiff. Plaintiff's plant was designed primarily and pre-eminently for supplying service to the tenants of his own building, and the special sales of electrical energy and steam were wholly subsidiary and ancillary to this main purpose." (Story v. Richardson, 186 Cal. at 167.)⁷

Most recently, in D.00-03-055, our order modifying the Rights-of-Way Decision and denying rehearing, we rejected Cox's argument that building owners clearly fall within the definition of a public utility. Cox had argued that we erred by failing to assert jurisdiction over private property owners as public utilities. Cox's theory, as in the instant case, was that the managing by private property owners of "rights of way (real estate), cross-connects on the owner's side of the MPOE [minimum point of entry] (wires, instruments and appliances), inside wire and INC (wires and cables) constitutes owning, controlling and managing telephone lines" under § 233, and as a consequence, that property owners who are responsible for such management and control do so for compensation as required by § 234. Cox also contended that private property owners are public utilities pursuant to § 216(c) because they deliver telephone service directly or indirectly to a portion of the public.

In D.00-03-055, we rejected Cox's argument:

"Cox has not demonstrated legal error. While we do not reach the issue of whether, under some circumstances, we could assert jurisdiction over building owners, the leading cases on the definition of a public utility do not support Cox's contention that building owners clearly fall under that definition.




"Cox's arguments are more in the nature of policy arguments than legal arguments. Much of Cox's petition address what Cox contends are the decision's failure to provide effective enforcement mechanisms to back up its policies. Cox presents the example of a building owner who unilaterally discriminates against a competitive carrier, without the agreement or cooperation of the [incumbent local exchange carrier]. In such a case, according to Cox, the Commission would be without authority to redress the discrimination.




"We believe that the [rights-of-way] rules adopted in the decision strike a balance between [Building Owners and Managers Association of California's] contention that we should allow exclusive agreements and Cox's claim that we should assert jurisdiction over building owners as public utilities. Thus, we decline to modify the decision as suggested by Cox on policy grounds." (D.00-03-055 at p. 11, citations omitted.)

d) Crow Development Has Not, As A Matter of Law, Dedicated Its Property to Public Use

Even if all the material facts listed by complainants are taken as true, they still do not establish an unequivocal intention, either expressed or inferred through conduct, that Crow Development has dedicated its property to public use.

Complainants allege that:⁸

· Crow Development has constructed conduits running through easements on its property to provide utility service to buildings on its own and adjacent properties;⁹

· the conduits are used to deliver telephone traffic to Jamboree's telephone facilities, which in turn are used to deliver the traffic to Jamboree's tenants;

· Crow Development, or its agents, manage for compensation the common areas on the development parcel on behalf of Crow Development;

· Pacific has been providing and currently provides telephone service to the facility parcel;

· CoxCom uses coaxial cables it installed in 1993 and 1996 in the conduits that run across the development parcel to provide cable television service on the facility parcel, and Cox has an agreement with CoxCom whereby Cox leases capacity on CoxCom's facilities to provide local exchange telephone service;

· Cox has received requests from tenants at the facility parcel, including Caltrans, to provide them with Cox's local exchange and other advanced telecommunications services.

· Crow Development has denied access to its property in order to provide cable television and telecommunications services and, as a result, CoxCom is unable to maintain and upgrade its facilities in a manner that would allow Cox to provide the requested telephone service to the facility parcel.

The California Supreme Court found that even where the property owners were essentially reselling the utility services in question (i.e., the property owners were providing water and electricity and billing tenants for those services), such resale to tenants was insufficient to establish dedication. Here, in contrast, complainants do not even allege that Crow Development is reselling telephone services, or that Crow Development is receiving revenue from Pacific for exclusive access or marketing arrangements. In a hypothetical case in which a building owner or property manager is receiving revenue from the telecommunications carrier for exclusive access or marketing arrangements, there may be a factual basis for finding the owner is a public utility. However, complainants do not even make such an allegation, let alone allege it as a disputed issue of material fact supported by declarations.

Complainants argue that the above cited California Supreme Court cases finding no dedication are inapplicable, because they are based on a prior relationship, such as landlord/tenant. According to complainants, in this case no private contractual agreements, or a preexisting relationship, exists between Crow Development and Jamboree's tenants.

However, there is a relationship (the Reciprocal Easement Agreement) between Crow Development and Jamboree's predecessor, Crow Operating.¹⁰ The fact that Jamboree's building is on a landlocked parcel does not change the fact that this is essentially a private dispute currently being litigated in the civil courts.

The Superior Court is currently addressing the easement entitlement issue, that is, what entities are legally entitled to a utility easement over Crow Development's property. It is for the Superior Court to determine whether they have recourse against Crow Development, as well as against their landlord Jamboree.¹¹ In fact, the Superior Court has granted Cox and CoxCom's motion for a preliminary injunction to the extent that CoxCom may continue to maintain and repair the cable facilities pending a decision on the merits of the Cox Superior Court Action.

The conduits here serve the benefit of a finite number of people located on the facility parcel, not the public at large. However, complainants cite Richfield Oil Corporation v. Public Utilities Commission, 54 Cal.2d at 431 for the proposition that a utility that has dedicated its property to public use is a public utility even though it may serve only one or a few customers. However, Richfield did not cite this proposition for determining whether an entity was a public utility in the first instance, but rather for the proposition that a company that has already been found to be a public utility remains so even though it turns its distributing system over to a publicly or privately owned utility, and thereafter limits its business to supplying the utility that directly serves the public. Moreover, the cases cited by Richfield on this point stand for the proposition that a public utility does not cease being so because its customers dwindle (Van Hoosear v. Railroad Commission, 184 Cal. at 557) or that an entity is providing a public service if it serves an indefinite portion of the public who wish to purchase mobile phone service, as opposed to all members of the public, citing Commercial Communications v. Public Utilities Commission (1958) 50 Cal.2d 512. Neither situation exists on the record here.

e) Conclusions Regarding Applicability of Other Public Utility Statutes to Crow Development

Because we grant this motion to dismiss on the basis that, as a matter of law, there is no dedication to public use in this case, and because an affirmative finding on the dedication issue is a condition precedent to regulation, it is not necessary to address whether Crow Development falls within the definition of a public utility under §§ 233, 234, or 216(c). It is also not necessary for us to address whether Crow Development is violating, inter alia, § 453(a), or §§ 1001 and 1013(a) because those sections apply only to a public utility.

Finally, for the reasons stated in the preceding paragraph, complainants also have not stated a cause of action under § 767.5, which addresses sharing of space on pole attachments primarily between public utilities and cable television providers. Section 767.5(a)(2) includes "conduit" within its definition of "support structure", and § 767.5 (a)(1) defines a public utility as an entity which owns or controls a support structure.

In Century Southwest Cable Television, Inc. v. CIIF Associates (9^th Cir. 1994) 33 F.3d 1068, 1071, the court held that this statue referred only to public easements, not private property. Also, in the order modifying the Rights-of-Way Decision and denying rehearing, we stated that the Rights-of-Way Decision made very clear that the Commission was not exercising jurisdiction over private property owners as a class. (D.00-03-055 at 9, citing the Rights-of-Way Decision at 101.) Therefore, § 767.5 does not confer jurisdiction on Crow Development absent a showing of dedication of its property to public use.

2. Conclusions Regarding Alleged Violations of Law Applicable to Non-Utilities

We also dismiss complainants' claims against Crow Development as a non-utility. Section 2111 provides that every corporation or person, other than a public utility, which or who knowingly violates or fails to comply with, or procures, aids, or abets any violation of any order, decision or rule of the Commission is subject to certain penalties.

Complainants allege that Crow Development is violating the Rights-of-Way Decision. However, the orders and rules adopted in the Rights-of-Way Decision apply to public utilities as defined by that decision. Because we find an absence of dedication for public use, the Rights-of-Way Decision does not apply to Crow Development.

Complainants also make the strained argument that Crow Development is aiding and abetting a complainant's (Cox's) violation of D.95-12-056, the Commission's order adopting rules pertinent to interconnections of competitive local carriers with incumbent local exchange carriers in order to further local exchange telecommunications competition. Complainants do not cite a particular ordering paragraph or provision of this lengthy decision pertinent to its cause of action. However, the complaint asserts that Cox has a legal obligation to provide services to Park Place pursuant to Appendix C at 4(F)(2) of D.95-12-056, because Park Place is within 300 feet of Cox's existing facilities. Presumably, complainants allege Crow Development is violating § 2111 because it is denying Cox access to the conduits.

However, nowhere in D.95-12-056 did we assert jurisdiction over private property owners to facilitate access to rights-of-way, absent a finding of a dedication to public use.¹² Rather, D.00-03-055 (which modified and denied rehearing of the Rights-of-Way Decision) clarified that when the carrier fails to reach agreement with a building owner for access, its ultimate remedy is to condemn the property at the appropriate time.

"The decision provides that when the carrier fails to reach agreement with a building owner for access, `the carrier may seek resolution of its dispute in the appropriate court of civil jurisdiction' as an alternative to filing a complaint with the Commission against another carrier. (D.98-10-058 at pp. 101-102.) Our intent here was not to create any right of action. Rather, this is a reference to a telephone utility's eminent domain rights under Public Utilities Code section 616 (as well as section 626, which was enacted after D.98-10-058 was issued.)" (D.00-03-055 at 12.)

In summary, we find that, accepting as true the complainants' material factual allegations, they do not sustain a finding of dedication. Consequently, we find that Crow Development is not a public utility and we grant Crow Development's' motion to dismiss the complaint as to itself.

C. Pacific's Motion to Dismiss

Pacific contends that both of complainants' theories supporting their complaint are wrong as a matter of law. Under one theory, Pacific has violated the Rights-of-Way Decision, because Pacific has an arrangement with Crow Development that has the effect of restricting Cox's access to the property.¹³ Under the other theory, Pacific has violated § 626 because Pacific has an affirmative duty to prevent property owners from limiting other carriers' access to their properties. We will address these two theories in sequence.

1. Alleged Violations of the Rights-of-Way Decision

a) Pacific's Position

In the Rights-of-Way Decision (D.98-10-058 at 130, Conclusion of Law 71, as modified in D.00-03-055), the Commission prohibited all carriers on a prospective basis from entering into any type of arrangement or agreement with private property owners that has the effect of restricting the access of other carriers to the owners' properties or discriminating against the facilities of other carriers. This decision also permits a carrier to file a complaint against another carrier with an access arrangement or agreement with a private building owner, including any executed prior to the date of the decision, that allegedly has the effect of restricting access of other carriers or discriminating against their facilities. (Id. at Conclusion of Law 72.) Cox alleges that Pacific has violated this decision by entering into a preferential arrangement with Crow Development.

A declaration by Robert Whittaker, an engineer and Orange County fiber planner for Pacific, disputes this allegation. According to Whitaker, Pacific does not have an exclusive access agreement or arrangement with Crow Development for access to the tenants at Park Place. Pacific originally placed its facilities on the Park Place property as a result of a service request when the property was held in a single ownership before Crow Development's purchase. Pacific states that prior to Cox filing the instant complaint, it informed Cox that although Pacific had facilities located in the conduit, Pacific neither owned the structure nor had an easement on the property. Pacific verified this fact by ordering a title report which stated that there are no easements in favor of Pacific on Crow Development's development parcel.

Whittaker also says that Crow Development has locked the manholes, denying access to Pacific's facilities, and has denied Pacific's requests to maintain and upgrade its facilities. Whittaker says that Pacific lacks facilities to serve all customer requests as a result of Crow Development's refusal to grant access, and that Pacific informed Cox of these facts before Cox filed the instant complaint. For these reasons, Pacific argues that Crow Development has treated both Pacific and Cox identically, that Pacific has not benefited from any access superior to that of Cox, and that therefore complainants have not stated a cause of action under the Rights-of-Way Decision against Pacific. Pacific also submitted a declaration by a Pacific Telesis Group Senior Counsel, Lori L. Ortenstone, who concludes that Pacific does not have an easement on Crow Development's property.

b) Complainants' Response

The crux of complainants' argument is that Crow Development has granted Pacific a preference by continuing to allow Pacific to use the cables on Crow Development's property to provide telephone service to tenants on the facility parcel, while denying Cox access to these cables to provide telephone service, and that Pacific has not objected to this preference because it benefits from the status quo.

Complainants believe there are triable issues of material fact concerning whether Pacific has an exclusive arrangement with Crow Development that allows Pacific to serve tenants on the facility parcel. These facts are as follows: (1) Pacific is the exclusive provider of local exchange telephone service on the property; (2) Pacific placed its facilities on Crow Development's property pursuant to the permission of the property owners; (3) Pacific presently provides telephone service to all 62 tenants at the facility parcel; (4) Pacific has failed and refused to take any action to require Crow Development to allow Cox or other facilities-based carriers to obtain access to Crow Development's property; and (5) Pacific benefits from its arrangement with Crow Development.

Complainants argue that by the Commission's adoption of the Rights-of-Way Decision, the Commission intended to foster competition on private property among carriers to benefit consumers. Complainants submit that the Commission should broadly construe the terms "arrangement" or "agreement" so that tenants, especially on multiple dwelling properties, can have a choice of telecommunications carriers. Complainants also argue that the current arrangement which allows Pacific to remain on Crow Development's property to provide telephone service to the facility parcel, and which excludes Cox and other facilities-based carriers, falls within the meaning of the Rights-of-Way Decision if Pacific is on the property pursuant to a license, because a license is exclusive to Pacific, unassignable, and falls outside the terms and conditions of Cox's Interconnection Agreement with Pacific.

Complainants include the declaration of one of their counsel, William K. Sanders, with their response. Mr. Sander's declaration authenticates certain documents attached thereto, including various responses to date requests, letters between Jamboree and Crow Development, and an excerpt from an interconnection agreement between Cox, CoxCom, and Pacific. Complainants also include the declaration of Phillip Bonham, Commercial Access Manager of CoxCom, who addresses CoxCom's provision of cable services to the facility parcel, Cox's receipt of requests from tenants at the facility parcel for local exchange service, Jamboree's request to Crow Development on Cox's behalf for an easement so that Cox can provide the requested telephone service, and the fact that Crow Development has filed a cross complaint against Cox and CoxCom for trespass and ejectment.

c) Discussion

As a matter of law, Pacific has not violated the portion of the Rights-of-Way Decision which prohibits carriers on a prospective basis from entering into any kind of arrangement or agreement with building owners that result in exclusive or discriminatory access, because it is undisputed that Pacific initiated service on the parcel prior to the issuance of the Rights-of-Way Decision.

Assuming complainants' factual allegations listed above to be true, we hold that, as a matter of law, Pacific has not violated that portion of the decision which prevents Pacific from currently have an arrangement or agreement with Crow Development that has the effect of restricting Cox's access to the conduits or discriminating against Cox. It is undisputed that CoxCom and Pacific both have cable in the conduit, and Crow Development is denying both utilities access to their respective facilities, as well as these utilities' request to maintain and upgrade their facilities.¹⁴ The facts demonstrate that both utilities are being treated in a similar fashion with respect to their current ability to access the conduits.

Pacific's actions have not denied Cox access to the conduits. The undisputed facts demonstrate that because of a private property dispute, Crow Development is acting unilaterally, and not in concert with Pacific, to deny Cox access to the conduits. Taking as true complainants' allegation that Pacific is benefiting by providing telephone service to tenants on the facility parcel, Pacific is not benefiting from an exclusive or preferential access agreement or arrangement of its own making. We do not interpret the Rights-of-Way Decision so broadly as to require Pacific to affirmatively file an action against Crow Development in order to enforce the rights of Cox or any other carrier under the facts of this case.¹⁵

2. Alleged Violations of § 626

a) Pacific's Position

Section 626 provides:

"On or after January 1, 2000, a public utility may not enter into any exclusive access agreement with the owner or lessor of, or a person controlling or managing, a property or premises served by the public utility, or commit or permit any other act, that would limit the right of any other public utility to provide service to a tenant or other occupant of the property or premises."

Presumably because Pacific first began providing service to the facility parcel prior to January 1, 2000, complainants do not argue that Pacific violated § 626 by entering into an exclusive access agreement with Crow Development on or after January 1, 2000. Rather, complainants argue that Pacific has violated § 626 by committing or permitting an act that would limit the right of another public utility to provide telephone service to the facility parcel.

Pacific states that it has not entered into an exclusive access agreement with Crow Development, nor has it permitted any other act which would have the effect of limiting Cox's provision of service. Pacific also maintains that it has not limited Cox's ability to provide service to tenants in Jamboree's building at Park Place, and does not have control over Crow Development's actions.

Pacific also maintains that it does not have an easement on Crow Development's property. Pacific argues that it does not have either a recorded easement or an implied easement because Pacific was neither an original grantor or grantee. According to Pacific, it also does not have a prescriptive easement because its presence on the property was never hostile to the owner but was by service request. Pacific argues that it has a license to be at Park Place, which is an unassignable privilege. Thus, Pacific may not assign to Cox any license rights that it might have.

b) Complainants' Response

Complainants argument regarding this issue is similar to their argument concerning the Rights-of-Way Decision. Therefore, according to complainants, the relevant triable issues of material facts concerning Pacific's alleged § 626 violation are that (1) Pacific is the exclusive provider of local exchange telephone service on the property; (2) Pacific placed its facilities on Crow Development's property pursuant to the property owners' permission; (3) Pacific presently provides telephone service to all tenants at the facility parcel; (4) Pacific has not taken any action to require Crow Development to allow Cox or other carriers to obtain access to Crow Development's property; and (5) Pacific is benefiting from the arrangement with Crow Development.

c) Discussion

We hold that Pacific has not as a matter of law violated § 626 even assuming the underlying material facts are as Cox maintains. Similar to our conclusion on the alleged violations of our Rights-of-Way Decision, we do not interpret § 626 so broadly as to require Pacific to affirmatively file an action against Crow Development in order to enforce Cox' rights under the facts of this case. To do otherwise would place utilities, which are often bystanders, directly in the line of fire of a multitude of California private property disputes.

Although Cox admits that the Superior Court is the proper forum to decide the nature of Pacific's property rights, Cox believes that Pacific has an easement on Crow Development's property and extensively briefs this point. ¹⁶ Cox does not dispute that Pacific first entered the property pursuant to a license from Fluor, but argues that the subsequent sale of the property to Crow Development and Winthrop Operating changed the nature of Pacific's rights on the property, and that there is ample evidence to support its claim that Pacific may have an equitable easement or easement by estoppel on Crow Development's property.¹⁷

It is undisputed that Pacific first entered the property pursuant to a license from Flour. It is also undisputed that Pacific does not believe it currently has an easement on Crow Development's property, and the title report Pacific obtained supports Pacific's own conclusion.

Cox admits that the Superior Court is the proper forum to decide the nature of Pacific's property rights. What Cox is essentially arguing is that Pacific's failure to enforce those rights, as defined by Cox, constitutes a violation of § 626. However, as stated above, as a matter of law, § 626 does not require Pacific to bring a quiet title action to enforce Cox's rights under the facts of this case. In other words, we do not require Pacific to initiate an action in Superior Court against Crow Development to establish that Pacific has an easement on the property, when Pacific's opinion, supported by an independent title report, is that it does not have an easement, when it is Cox who believes that Pacific has an easement, and when Crow Development is unilaterally prohibiting both Pacific and complainants from accessing the conduits.

In summary, we find that accepting as true complainants' material factual allegations, they do not sustain a finding that Pacific has violated either the Rights-of-Way Decision or § 626. We therefore grant Pacific's motion to dismiss the complaint as to itself.

D. TRO and Preliminary Injunction

The summary disposition of this case demonstrates that the requesting parties have not prevailed on the merits of their complaint. Therefore, we deny complainants request for a TRO and preliminary injunction.

We also note that the Superior Court has granted Cox and CoxCom's motion for a TRO and preliminary injunction to the extent that CoxCom may continue to maintain and repair the cable facilities pending a decision on the merits of that case. Thus, the status quo is being maintained while the Superior Court case is pending.

E. Penalties Against Cox

Pacific argues that complainants named Pacific as a defendant and requested that the Commission levy penalties against it, even though Pacific informed Cox prior to the complaint's filing that Pacific had no easement on Crow Development's property and that it had also been denied access by Crow Development. For this reason, in addition to requesting that the complaint be dismissed, Pacific also requests that Cox should be sanctioned or admonished for failing to even minimally investigate the facts it alleges. Complainants vigorously oppose this request. In this murky area of law, although we hold against complainants, we see nothing in their conduct in bringing this complaint that would justify assessing penalties.