Agenda Packets - 1986/05/19 - Laserfiche WebLink

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- 8 - were filed in January 1986. The brief of Preferred Communications, and parties supporting the Ninth Circuit's decision, were filed in February 1986, The argue before the Supreme Court have been scheduled for April 29, 1986. A decision may not be randered prior to the Fall. B. The Florida Power Case In Florida Power Corp. v. FCC, 772 F.2d 1531 (llth Clr. 1985), the Eleventh Circuit found that a cable wire's occupation of space on a utility polo was a "taking" of private property because the physical attachment of the cable to the poles made the occupation "permanent" and because the cable company's occupation of the space at one-third the agreed -upon rates in prior contracts transformed the company from an "invitee" to an "unwanted quest." The court then held that the determination of the just compensation due under the Fifth Amendment for this "taking" was solely a judicial function. Because the Pole Act provided for the FCC to sat compensation rates, the Eleventh Circuit ruled that the Pole Act was unconstitutional. The Eleventh Circuit did not reach the question of proper jurisdiction over pole rates by state agencies charged with the responsibility of regulating the power company as a public utility. In the sixteen states and the District of Columbia which have exercised their preemptive right to regulate in this area, the impact of this decision will not be immediateiy felt. The decision could, however, affect the FCC's authority under the 1978 Pole Act to certify whether states are in compliance with the Act's preconditions for preemption. C. The Cox Cable New Orleans Case in 1984, the United States District Court for the Eastern District of Louisiana held that the City of New Orleans was neither preempted from regulating the number or nature of signals offered on a basic service tier, nor from enforcing tarmn in the franchise agreement requiring that specific offerings be provided on that basic service tier. Cox Ca'uio 14-- Orleans inc. v City of New Orleans, 94 F. Supp. 14 2 (F.D. La. 19841. s That decision was appealed to the Fifth Circuit. But in December 1985, Cox Cable and the City of Now Orleans settled the case and filed a joint motion to vacate the district court docisicrwithout issuing an opinion, District Judge Veronica Nicker granted that motion on December 16, 1985.