IV. Comments on Draft Decision
The draft decision of ALJ Econome in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7(b).
1. Competition in the telecommunications industry means that many different providers may provide the same or different services to different tenants within a single industrial or commercial development.
2. The parties to this proceeding, and others, are involved in multiple actions both at this Commission and in the Superior Court which, in part, seek to resolve the same underlying problem, that is, access to the existing utility easements.
3. Complainants did not file any declaration in response to Crow Winthrop's motion setting forth specific facts showing a triable issue of material fact. 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.
4. Complainants listed the following disputed issues of material fact with respect to Crow Development:
· Crow Development has constructed conduits running through easements on its property to provide utility service to buildings on its own and adjacent properties;
· 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.
5. The utility conduits serve the benefit of a finite number of people located on the facility parcel, not the public at large.
6. Complainants do not allege that Crow Development is reselling telephone services, or that Crow Development is receiving revenue from Pacific for exclusive access or marketing arrangements.
7. There is a relationship (the Reciprocal Easement Agreement) between Crow Development and Jamboree's predecessor, Crow Operating. 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.
8. 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.
9. Cox alleges that the material facts as to Pacific 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.
10. Crow Development has denied both Pacific and Cox's access to their respective facilities, as well as these utilities' request to maintain and upgrade their facilities. The facts demonstrate that both utilities are being treated in a similar fashion with respect to their current ability to access the conduits.
11. Pacific's actions have not denied Cox access to the conduits. The undisputed facts demonstrate that, presumably because of a private property dispute, Crow Development is acting unilaterally, and not in concert with Pacific, to deny Cox access to the conduits.
12. It is undisputed that Pacific first entered the property to provide telephone service pursuant to a license from Flour. Although Pacific and Cox disagree as to whether Pacific has an easement over the conduits, Cox admits that the Superior Court is the proper forum to decide the nature of Pacific's property rights.
13. 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.
1. A motion to dismiss essentially requires the Commission to determine whether the party bringing the motion wins based solely on undisputed facts and matters of law.
2. The Commission treats motions to dismiss under Rule 56 as motions for summary judgment in civil practice.
3. In motions to dismiss, 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.
4. Since 1912, the California Supreme Court has consistently interpreted the statutory definitions of public utilities to apply only to entities that have dedicated their property to public use.
5. 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. However, such dedication may be inferred from action and need not be explicit.
6. Numerous California cases have held that a landlord's provision of services to tenants does not constitute dedication to public use.
7. In D.00-03-055, our order modifying the Rights-of-Way Decision (D.98-10-058) and denying rehearing, we rejected Cox's argument that building owners clearly fall within the definition of a public utility.
8. 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.
9. 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.
10. Section 767.5 does not confer jurisdiction on Crow Development absent a showing of dedication of its property to public use.
11. Because we find an absence of dedication for pubic use, the Rights-of-Way Decision does not apply to Crow Development.
12. Complainants § 2111 claim against Crow Development should be dismissed.
13. D.00-03-055, modifying and denying 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.
14. The Rights-of-Way Decision 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 facilities.
15. We do not interpret the Rights-of-Way Decision or § 626 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. To do otherwise would place utilities, which are often bystanders, directly in the line of fire of a multitude of California private property disputes.
16. Accepting as true complainants' allegations of material fact, they do not sustain a finding that Pacific has violated either the Rights-of-Way Decision or § 626.
17. Crow Development's and Pacific's respective motions to dismiss the complaint should be granted.
18. Complainants' request for a TRO and preliminary injunction should be denied.
19. No penalties should be assessed against Cox for bringing this complaint.
20. In light of the multiple cases now in progress, this order should be effective immediately.
IT IS ORDERED that:
1. Crow Winthrop Development Limited Partnership's and Pacific Bell's respective motions to dismiss this complaint shall be granted.
2. Case 00-05-023, the complaint filed by the State of California Department of Transportation, Cox California Telecom, L.L.C. dba Cox Communications, and Coxcom, Inc., dba Cox Communications of Orange County is dismissed, and the proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
Appendix A--Other Court and Administrative Actions
1. Jamboree L.L.C. (Jamboree) Superior Court Action
In March 1999, Jamboree commenced a state court action against, inter alia, Crow Development.18 According to a First Amended Complaint filed in that action on January 18, 2000,19 in 1985, two partnerships, Crow Winthrop Operating Partnership (Winthrop Operating) and Crow Development, each acquired separate portions of land and office space located at Park Place. Winthrop Operating acquired Park Place's then-existing office buildings, called Fluor World Corporation Headquarters Facility, and underlying land (the facility parcel). Crow Development owned and still owns a majority of the surrounding 90 acres (development parcel).
Also, Crow Development and Winthrop Operating entered into an agreement entitled "Construction, Operation and Reciprocal Easement Agreement" dated July 26, 1985 (Reciprocal Easement Agreement).
In April 1996, Winthrop Operating defaulted on its loan. As a result of Winthrop Operating's plan of reorganization confirmed by bankruptcy court, a newly created company, Jamboree, became the new owner of the facility parcel.
Jamboree's First Amended Complaint alleges seven causes of action against Crow Development.20 Among other things, Jamboree complains of Crow Development's interference with Jamboree's utility easements. Jamboree alleges, in relevant part, that Crow Development is interfering with Jamboree's ability to access its easements as provided in the Reciprocal Easement Agreement, and such interference prevents providers such as CoxCom and Cox from providing cable and telephone service to the facility parcel. Jamboree seeks a declaration that it be allowed full access to its utility easements, which in turn would give CoxCom and Cox certain access to the easements. Crow Development's motion for official notice attaches copies of the voluminous discovery (many deposition transcripts, etc.) that has occurred in this case.
On May 17, 2000, before filing the instant case, Cox and CoxCom filed a complaint against Crow Development in Orange County Superior Court for declaratory and injunctive relief. Cox and CoxCom seek a declaration, in relevant part, that (1) CoxCom has both express and implied, affirmative and proscriptive, easements (through the Reciprocal Easement Agreement and otherwise) across Crow Development's property to install and maintain its cable system, over which cable television, high-speed internet access and telephone services are provided to Park Place customers, and (2) Cox and CoxCom are entitled to the continued use of these easements without interference from Crow Development. Cox and CoxCom also seek to enjoin Crow Development from denying CoxCom access to its cable distribution system on Crow Development's property and from interfering with CoxCom's operation and maintenance of this cable system.
Crow Development has filed a cross-complaint against Cox and CoxCom in the Cox Superior Court Action for trespass, ejectment, injunctive relief, declaratory relief, and restitution for violations of California Business and Professions Code § 17200. The Cox Superior Court Action has been transferred to the same judge as the Jamboree Superior Court Action.
The Superior Court has ruled on Cox and CoxCom's motion for preliminary injunction, granting it only to the extent that CoxCom may continue to maintain and repair the cable facilities pending a decision on the merits of the case. The court declined to grant a broader preliminary injunction, in part because plaintiffs failed to show that they will prevail on the merits as to any claimed easement rights by virtue of Jamboree's rights or public utility rights. The court also indicated it would consider granting a motion for a limited stay of the Cox Superior Court Action because of the pending action between Crow Development and Jamboree. The court has not rendered a final decision on the merits of the Cox Superior Court Case, nor has Cox or CoxCom dismissed this case or any of the asserted claims in light of the Superior Court's ruling on the preliminary injunction.
3. C.00-05-022 (Related Commission Complaint)
On the same day that Cox filed the instant case, Cox filed a complaint at this Commission against Crow Winthrop pursuant to Pub. Util. Code § 625, in which Cox seeks a finding that its proposed condemnation of certain easements is in the public interest. We addressed C.00-05-022 in Decision (D.) 00-11-038, rehearing denied in D.01-02-078. In D.00-11-038, we dismissed the proceeding without prejudice to Cox refiling the complaint, depending on the outcome of pending Superior Court litigation over Cox's entitlement to access the utility easements.
(End of Appendix A)
************ APPEARANCES ************ |
Maria E. Stevens |
(End of Appendix B)
18 This case is consolidated with multiple other proceedings. 19 Crow Development requests the Commission take official notice of the First Amended Complaint, which request is granted insofar as we take notice that such a complaint is filed and that the complaint contains certain allegations. We do not take as established facts the allegations set forth in the complaint. 20 Jamboree's First Amended Complaint alleges the following seven causes of action: breach of contract (Reciprocal Easement and Management Agreements); specific performance of the Reciprocal Easement Agreement; breach of contract of a settlement agreement; declaratory relief; private nuisance; tortious interference with contract; and tortious interference with prospective business advantage.
