USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 99-1222

CABLEVISION OF BOSTON, INC.,

Plaintiff, Appellant,

PUBLIC IMPROVEMENT COMMISSION OF THE CITY OF BOSTON;

JOSEPH F. CASAZZA, MICHAEL GALVIN, GARY MOCIA, PARA M.

JAYASINGHE, and STEPHEN SHEA, as Commissioners of the Public

Improvement Commission of the City of Boston;

CITY OF BOSTON; BOSTON EDISON COMPANY; BECOCOM, INC.; RCN-

BECOCOM, LLC; RCN TELECOM SERVICES OF MASSACHUSETTS, INC.; and

RCN CORPORATION,

Defendants, Appellees.

____________________

On Appeal from an Order Denying a Motion

for Preliminary Injunction

Entered by the United States District Court

for the District of Massachusetts

[Hon. Mark L. Wolf, U.S. District Judge]

____________________

Before

Lynch, Circuit Judge,

Noonan, Senior Circuit Judge,

and Lipez, Circuit Judge.

___________________

J. Anthony Downs, with whom Stephen D. Poss, Jeffrey A.

Simes, and Goodwin, Proctor & Hoar LLP were on brief, for

appellant Cablevision of Boston, Inc.

Merita A. Hopkins, Corporation Counsel, with whom Laura

Steinberg and Sullivan & Worcester LLP were on brief, for

appellees Public Improvement Commission of the City of Boston;

Joseph F. Casazza, Michael Galvin, Gary Mocia, Para M.

Jayasinghe, and Stephen Shea, as Commissioners of the Public

Improvement Commission of the City of Boston; and the City of

Boston.

Roscoe Trimmier, Jr., with whom R.K. Gad III, Philip C.

Koski, Russell P. Hanser, Deborah L. Levi, and Ropes & Gray were

on brief, for appellees Boston Edison Company and BecoCom, Inc.

Michael J. McHugh, with whom James T. Finnigan, K. Jill

Rizzotti, and Rich, May, Bilodeau & Flaherty, P.C. were on brief,

for appellees RCN-BecoCom, LLC; RCN Telecom Services of

Massachusetts, Inc.; and RCN Corporation.

____________________

August 25, 1999

____________________ LYNCH, Circuit Judge. Cablevision of Boston sought a

preliminary injunction in federal court against its principal local

competitors in the developing broadband telecommunications market.

Its complaint alleged that these competitors had taken unfair

advantage of their access to underground electrical conduit in

violation of Mass. Gen. Laws ch. 93A. Cablevision also sought

injunctive relief against the City of Boston, arguing that the City

had failed to manage the conduit rights of way in a competitively

neutral and nondiscriminatory manner in violation of 253(c) of

the Federal Telecommunications Act of 1996, 47 U.S.C. 253(c).

After an evidentiary hearing, the district court denied the motion

for a preliminary injunction. Cablevision appeals.

Cablevision's suit names as defendants Boston Edison

Company, a public utility, and its unregulated affiliate BecoCom,

Inc. (collectively "Boston Edison"), as well as RCN Corporation and

its subsidiary RCN Telecom Services of Massachusetts (collectively

"RCN"). It also names RCN-BecoCom ("the Joint Venture"), a joint

venture between RCN and BecoCom which, like Cablevision, plans to

offer broadband telecommunication services in Boston. For

convenience, we refer to these entities collectively as the private

defendants. In addition, Cablevision sued the Public Improvement

Commission of the City of Boston ("PIC"), the PIC Commissioners, in

their official capacities, and the City of Boston. We refer to

these defendants collectively as "the City."

Cablevision complains that Boston Edison pulled

telecommunications cable through its existing electrical conduit

for the benefit of the Joint Venture without giving proper public

notice of this altered use and without seeking prior approval from

the City. It alleges that the City wrongfully enabled the Joint

Venture to take unfair advantage of Boston Edison's existing

conduit and cable, by allowing Boston Edison to convert conduit and

cable for the Joint Venture's benefit over a two-year period

without imposing on Boston Edison the obligations imposed on

entities constructing new conduit. In contrast, Cablevision says,

it has been required to go through a time-consuming public

application process for new grants of location when it wished to

construct new conduit for broadband telecommunications cable, and

it has had to provide the City with shadow conduit in that

construction.

Approximately two years after passage of the

Telecommunications Act, the City began imposing on conduit owners

an unwritten policy that requires the owners to seek amended grants

of location if they wish to expand or alter their use of existing

conduit. PIC has since awarded such amended grants of location to

Boston Edison, including after-the-fact amendments for conduit

conversions that occurred between 1996 and 1998. Cablevision's

preliminary injunction would prevent the City from granting the

private defendants any further amended grants of location and would

forbid the private defendants from installing any new

telecommunications cable in electrical conduit or expanding their

commercial usage of any previously installed telecommunications

cable.

We set aside, for the narrow purposes of this appeal, the

difficult question whether Cablevision has a cause of action to

enforce rights under 253(c), as well as related questions

regarding the proper interpretation of that section of the

Telecommunications Act. Assuming arguendo that Cablevision has a

253(c) cause of action and that 253(c) requires the City to

manage its rights of way on a competitively neutral and

nondiscriminatory basis, we determine that Cablevision is unlikely,

in any event, to show that the City failed to fulfill this

requirement. We further conclude that Cablevision is unlikely to

prevail on its Chapter 93A claim in this action. Thus, we affirm

the district court's denial of preliminary injunctive relief.

I. FACTS

The facts are largely taken from the opinion of the

district court. For the most part, these are undisputed; the few

points of disagreement are noted. Because key aspects of this case

involve changes that have occurred over time and actions that are

alleged to have been untimely, we present the facts

chronologically.

In Boston, as elsewhere, the electricity and cable

television businesses were once entirely distinct enterprises.

Boston Edison has provided electricity to customers in the Greater

Boston area since 1886, using a large network of underground

conduits as well as above-ground transmission lines and towers. As

a public utility, Boston Edison has enjoyed a statutory monopoly.

Cablevision is equally well-established in Boston as a provider of

cable television. It began building a system to deliver cable

television signals within Greater Boston in the 1970s and largely

completed that system, and began providing cable service, by 1982.

Unlike Boston Edison, Cablevision does not possess a statutory

monopoly. However, it did enjoy a de facto monopoly for many

years. Although its two franchise agreements with the City have

been non-exclusive, it had no local competitors until 1996, when a

predecessor affiliate of RCN entered the Boston cable television

market. Cablevision still services approximately ninety-seven

percent of Boston cable customers.

In order to reach their customers, both Boston Edison and

Cablevision have needed to install conduit under the streets of

Boston. State law permits them to do so, see Mass. Gen. Laws ch.

166, 21, but requires them to first obtain a grant of location

from the appropriate municipal authority, see id. 22.

Cablevision obtains grants of location for its conduit from the

PIC, which is the division of the City's Department of Public Works

responsible for construction projects involving City streets.

Applicants submit a detailed public petition to the PIC, which

decides after a public hearing whether to bestow the requested

grant of location. Boston Edison receives similar grants of

location for its electrical conduit from another municipal

authority, the Inspectional Services Division (ISD). It is not

clear from the record whether the ISD process is as open to public

involvement as the PIC procedure. It appears, in any case, that

the PIC is the entity ultimately responsible for maintaining a

record of the various grants of location -- a record that amounts

to a map of Boston's subterranean conduit network.

Since 1988, the PIC has enforced a written "Policy

Relating to Grants of Location for New Conduit Network for the

Provision of Commercial Telecommunications Services" ("the PIC

Policy"), which was designed to minimize the number of times City

streets would have to be torn up for underground construction,

while simultaneously maximizing the amount of conduit space

available for the provision of telecommunication services. As its

full name makes clear, the PIC Policy applies only to the

installation of new conduit for commercial telecommunications

purposes. The PIC Policy requires any entity or "Lead Company"

that wishes to install new telecommunications conduit to build

additional empty shadow conduit for the City that can be used to

meet future demand. Once the City's shadow conduit is installed,

the PIC Policy requires a provider to lease any available space in

that conduit before constructing new conduit. The PIC Policy, as

amended, also requires those constructing new conduit to notify all

interested telecommunications providers of their intent to cut the

street and to offer these providers the opportunity to have their

own conduit installed at the same time. Under the policy,

participants in approved projects share the costs of excavation,

conduit construction (including construction of shadow conduit),

and street resurfacing.

The parties debate the extent to which Cablevision has

been economically burdened by the PIC Policy. Boston Edison notes

that most of Cablevision's conduit was constructed prior to the

adoption of the PIC Policy in 1988, while Cablevision emphasizes

the delays and expenses that it has borne for any conduit installed

since that time. By contrast, Boston Edison has been able to avoid

these burdens to the extent that it installed conduit for electric

utility purposes only. Before October 1998, when the Joint Venture

first petitioned PIC as a Lead Company, neither Boston Edison nor

any of its affiliates had ever applied to the PIC for a grant of

location.

But long before October 1998, Boston Edison had been

considering expanding into the telecommunications business and

taking steps in that direction. One driving force behind this

transformation was the need to diversify in response to the

deregulation of the electricity business. Another factor was

opportunity. Boston Edison already owned a vast distribution

network, in the form of conduit and poles, which could be used to

carry telecommunications cable. Moreover, it already had a

rudimentary fiber optic network in place that was originally built

to carry signals to control the distribution of electricity, but

which had significant excess capacity. According to Boston Edison,

the excess capacity was not a planned feature; rather, it came

about because manufacturers of fiber optic cables included many

more fiber strands in their standard product than Boston Edison

needed for utility purposes.

In late 1995, Boston Edison informed the PIC Chairman,

Joseph Casazza, that it intended to use its existing conduit (and

excess fiber capacity) for commercial telecommunications purposes

and asked Casazza whether the City had any policies regarding this

conversion. After taking a month to consider the issue, Casazza

told Boston Edison that he did not think the City had an applicable

policy. In particular, he did not think that the PIC Policy

applied, since, by its terms, it referred only to the construction

of new conduit. In response to Boston Edison's query, Casazza

decided to convene a small working group, composed of Boston Edison

and certain local telecommunications providers, to draft a proposed

policy on the conversion of existing conduit and cables.

Meanwhile, Boston Edison began to expand its fiber optic

network in 1996 with the goal of eventually entering the

telecommunications business. Although the expansion was

significant (involving more than 7,000 "fiber-miles" along 103

right-of-way miles), it apparently did not involve the installation

of any new conduit under Boston streets, and so did not expose

Boston Edison to the demands of the extant PIC Policy.

Once Boston Edison made the decision to construct a fiber

optic network for telecommunications purposes, it also began to

search for customers (i.e., telecommunications providers) that

might want to make use of the network. According to Boston Edison,

it contacted Cablevision along with a number of other providers,

but Cablevision stated that it had no interest in using Boston

Edison's network. Cablevision vigorously disputes this point; it

claims that a Boston Edison official made only an informal, offhand

comment about access to fiber and never made clear that Boston

Edison was offering access to its underground electrical conduit

within the City of Boston.

Boston Edison eventually entered into a joint venture

agreement with RCN, which had begun supplying cable television to

a small number of Boston customers. The Joint Venture,

Cablevision's competitor in the developing broadband market, is the

product of that agreement. RCN issued a press release on June 30,

1996 to announce the formation of the Joint Venture with Boston

Edison. The press release stated that the Joint Venture would

benefit from the use of Boston Edison's "large fiber optic

network." The Boston Globe later repeated this point, reporting

that "RCN hopes to use Boston Edison's 200 mile fiber optic network

and its rights of way into customers['] homes to compete head to

head with the large telecommunications providers." In June 1997,

BecoCom and the Joint Venture entered into an agreement giving the

Joint Venture the right to use the conduit and cable network that

Boston Edison assigned to BecoCom pursuant to a license agreement.

The Joint Venture has begun using this network to deliver

telecommunications service in Boston.

While these changes were occurring in Boston, a dramatic

change was made in federal telecommunications law. On February 8,

1996, Congress enacted the Telecommunications Act of 1996 (TCA),

Pub. L. No. 104-104, 110 Stat. 86 (codified at 47 U.S.C. 151 et

seq.), to remove regulatory barriers and encourage competition

among telecommunications providers. Although a large portion of

the TCA focuses on the deregulation of the telephone industry,

Congress also expressly anticipated and welcomed the entry of

electrical utilities into the telecommunications business.

Several months after passage of the TCA, the industry

working group presented Casazza with a draft policy regarding the

use of utility conduit and cable for commercial telecommunications.

The proposed policy would have required utilities to submit plans

to the PIC showing the location of all existing cable and conduit

that were selected for conversion. In addition, the policy would

have required utilities to apply to the PIC for an amended grant of

location before adding telecommunications cable to utility conduit

or converting existing utility cable to telecommunications use.

Casazza did not immediately act on the working group's

recommendations. He had several reasons to delay his decision.

First, he wanted to be sure that any PIC policy regarding

conversion was compatible with requirements imposed by the TCA.

Casazza states that he wanted to avoid hurriedly adopting a policy

that might "be in conflict with a brand new law that we totally

didn't understand." He also wanted to be sure that the PIC stayed

within the narrow scope of its authority. In Casazza's view, the

PIC's purpose is not to control the usage of conduit and cable, but

rather to manage city streets and keep appropriate records. In

informal terms, Casazza explains, that purpose is fulfilled by

telling businesses "[if] you're under our streets, come in here and

tell us who you are, [and] where you are, so we can make a map."

Casazza notes that the City needs to have such a map so that, for

example, "the next time [a] contractor digs up a city street we're

not going to wipe out all the research at Tufts Medical Center."

In light of this understanding of the PIC's mandate,

Casazza emphasizes that he never gave Boston Edison permission to

convert cables or conduit for telecommunications purposes; nor did

he deny Boston Edison permission to do so. Rather, Casazza simply

advised Boston Edison and the other members of the working group

that he did not intend to immediately adopt the group's proposed

policy, and that they would therefore have to continue with

conversions at their own risk, subject to any future policy adopted

by the PIC, the City, or some other regulatory authority. It is

unclear from the record whether Cablevision was present at this

meeting.

To date, the City has still not adopted any formal

written policy regarding grants of location for converted conduit

or cable. However, the PIC has begun enforcing an oral policy,

loosely tracking the industry-drafted policy from April 1996, which

requires businesses to acquire amended grants of location if they

change their usage of existing conduit or cable. It is not clear

from the record whether this oral policy requires businesses to

seek an amended grant of location before they install any new cable

or merely before they put the new (or existing) cable to an altered

use.

The City informed Boston Edison of this policy by

telephone conversation on April 6, 1998. After seeking further

clarification, Boston Edison presented its first petition for

amended grants of location on June 5, 1998. In the fall of 1998,

Boston Edison filed additional petitions with the PIC for amended

grants of location, a number of which pertained to conversions that

Boston Edison had already completed. Over Cablevision's

objections, the PIC granted each of these petitions. During the

same time period, the PIC also applied its conversion policy to

Bell Atlantic, a telephone utility that had previously installed

additional telecommunications cable in its conduit. Acting on five

to ten Bell Atlantic petitions, the PIC recorded amended grants of

location to reflect Bell Atlantic's expanded use of its conduit for

telecommunications purposes. The PIC granted the petitions from

Boston Edison and Bell Atlantic without considering the impact of

the amended grants of location on competition in the

telecommunications business.

II. PROCEDURAL HISTORY

Cablevision filed a federal lawsuit against the City and

the private defendants on December 14, 1998. The complaint alleges

that the private defendants carried out a "scheme . . . designed to

create a 'stealth' telecommunications network using ratepayer funds

and . . . to obtain through deception an unfair competitive

advantage . . . by violating City ordinances and policies governing

the use of conduits and cables buried under Boston's streets."

According to Cablevision, the private defendants violated Chapter

93A (Massachusetts' unfair trade practices law) when they concealed

their use of electrical conduit for telecommunications purposes

from the City, avoided applying for permission to convert

electrical conduit, and failed otherwise to notify competitors of

the planned conversions, in order to lower their costs and beat

competitors in the race to sign up telecommunications customers.

In the alternative, Cablevision suggests that the City

knew about the private defendants' wrongful actions all along and

secretly permitted those actions. Regardless of the City's

knowledge of the private defendants' activities, Cablevision

complains, the City's recent decision to give Boston Edison after-

the-fact or retroactive amended grants of location "enables the

defendants' scheme to succeed" and "solidif[ies] the significant

unfair competitive advantage the non-municipal defendants have

obtained," in violation of the City's obligation under 253(c) to

manage its rights of way in a competitively neutral and

nondiscriminatory manner.

Cablevision seeks both damages and injunctive relief.

Its proposed preliminary injunction would require the City to deny

the private defendants any further grants of location, whether

amended or new, for conduit or cable that is specifically intended

for commercial telecommunications use or that uses or connects to

any conduit or cable for which Boston Edison has already received

amended grants of location. In addition, the injunction would

require the City to determine how each segment of the private

defendants' conduit and cable is being used and to report these

uses to the parties and the court. The injunction would place

similar demands on the private defendants, requiring them to cease

any expansion of their telecommunications infrastructure or

business and to furnish a complete description of all portions of

their network that rely on former electrical conduit or cable.

The parties admirably agreed to maintain the status quo

for a period of time to enable the district court to hold a hearing

and reach a decision on Cablevision's preliminary injunction

motion. In addition to considering voluminous filings, including

affidavits, the court held a six-hour evidentiary hearing on

January 20, 1999, before denying the motion. See Cablevision of

Boston, Inc. v. Public Improvement Comm'n, 38 F. Supp. 2d 46, 49

(D. Mass. 1999).

Applying the familiar preliminary injunction standard,

the district court considered four factors: (1) the likelihood of

plaintiff's success on the merits, (2) the threat of irreparable

harm to the plaintiff in the absence of an injunction, (3) the

balance of equities, and (4) the public interest. See I.P. Lund

Trading ApS v. Kohler Co., 163 F.3d 27, 33 (1st Cir. 1998)

(explaining standard). While recognizing that the first of these

factors is the most critical, see Ross-Simons of Warwick, Inc. v.

Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996); Gately v.

Massachusetts, 2 F.3d 1221, 1225 (1st Cir. 1993), the district

court denied Cablevision's motion because it found that Cablevision

failed to make the necessary showing on each of the four factors.

See Cablevision, 38 F. Supp. 2d at 53-63.

The court first considered whether Cablevision has a

legal basis to assert a claim under 253(c). Cablevision proposed

three possible bases: an implied right of action under 253(c)

itself, an enforcement action under 1983, and a preemption claim

under the Supremacy Clause. The district court was skeptical about

the first two bases, but concluded that Cablevision could probably

seek limited relief directly under the Supremacy Clause. See id.

at 54-58.

The court went on, however, to find that Cablevision was

unlikely to succeed on the merits of its 253(c) claim. Its

analysis was multilayered. First, the court questioned whether the

phrase "competitively neutral and nondiscriminatory" applies to

local authorities' management of their rights of way. See id. at

58. The court then distinguished between the two terms, finding it

unlikely that 253(c) requires management of public rights of ways

to be "competitively neutral," but possible that 253(c) requires

such management be "nondiscriminatory." See id. at 58-59.

Assuming arguendo that a nondiscrimination requirement does apply,

the court concluded that Cablevision is nonetheless unlikely to

prevail on its 253(c) claim because the City has managed its

rights of way in a nondiscriminatory manner by treating similarly

situated entities alike. See id. at 59-60.

The court also concluded that Cablevision is unlikely to

prevail on its Chapter 93A claim. It found that the private

defendants did not appear to have acted unscrupulously or to have

violated any state law or regulation; indeed, the court found, the

PIC may have affirmatively permitted the private defendants'

actions, thus providing them with a safe harbor under 3 of

Chapter 93A. See id. at 60-62. Thus, the court concluded that

Cablevision was not likely to prevail on the merits of either its

federal or its state claim.

As to the preliminary injunction requirement of

irreparable injury, the court found that loss of market share was

an irreparable injury to Cablevision, but that Cablevision had

brought this injury on itself by coming so late to the Boston

broadband telecommunications market. See id. at 62-63. The court

found further that Boston Edison and the other private defendants

would suffer irreparable injury if an injunction issued, and

finally, that issuing an injunction would be contrary to the public

interest in robust competition among telecommunications providers.

See id. at 63.

III. STANDARD OF REVIEW

The standard of review for the grant or denial of a

preliminary injunction has several components. "The usual rubric

refers to abuse of discretion," Ocean Spray Cranberries, Inc. v.

Pepsico, Inc., 160 F.3d 58, 61 n.1 (1st Cir. 1998), which entails

giving "considerable deference" to the district court's decision,

Ross-Simons, 102 F.3d at 16. The abuse of discretion standard

applies, in particular, to "issues of judgment and the balancing of

conflicting factors." Ocean Spray Cranberries, 160 F.3d at 61 n.1.

But "rulings on abstract legal issues remain reviewable de novo,

and findings of fact are assessed for clear error." Id.; see also

I.P. Lund, 163 F.3d at 33.

IV. FEDERAL TELECOMMUNICATIONS ACT CLAIM

The central question on appeal is whether the district

court erred when it concluded that Cablevision is unlikely to

succeed on the merits of its 253(c) claim. This question

involves a number of subsidiary questions, most of which we merely

identify and set aside in order to focus on the crux of this

matter: whether, pursuant to 253(c), the PIC has been obligated

since 1996 to regulate Boston Edison's use of cable and conduit in

order to create a level playing field among competitors in the

Boston telecommunications market. We determine that 253(c) did

not place such an obligation on the PIC. Thus, we affirm, albeit

on different grounds, the district court's conclusion that

Cablevision is unlikely to prevail on its 253(c) claim.

A. Section 253(c) in Context

Cablevision's 253(c) argument can only be evaluated by

placing that subsection in the larger context of the TCA. Although

the TCA is technically written as a set of amendments to the

Communications Act of 1934, 47 U.S.C. 151 et seq., it actually

represents a dramatic shift in the nature of telecommunications

regulation. Regulation of the telephone industry (once the

principal form of telecommunications) was long premised on the

belief that only monopolies could provide reliable, universal

service. Thus, state and federal regulators spent decades

protecting monopolies from competition. The TCA takes the opposite

approach: rather than shielding incumbent telephone companies from

competition, it requires them to provide other participants in the

telecommunications market with competitive access to their networks

and services. This shift exemplifies a widespread change in the

laws governing regulated industries. See Kearney & Merrill, The

Great Transformation of Regulated Industries Law, 98 Colum. L. Rev.

1323, 1325-26 (1998) ("Instead of striving for equality of

treatment among end-users and reliability of service, the new

paradigm seeks to encourage multiple providers to offer different

packages of services at different prices to end-users, on the

theory that competition among these providers will enhance consumer

welfare.")

Three central provisions of the TCA -- 251, 252, and

253 -- instantiate this policy. Section 251 defines the duties

of different classes of telecommunications providers. See 47

U.S.C. 251. All telecommunications carriers have a duty "to

interconnect directly or indirectly with the facilities and

equipment of other telecommunications carriers." Id. 251(a).

"[L]ocal exchange carriers" (i.e., those who provide telephone

service, see id. 153(26)) also have a duty to allow resale of

their services, to provide number portability and dialing parity,

to establish reciprocal compensation agreements, and "to afford

access to th[eir] poles, ducts, conduits, and rights-of-way . . .

to competing providers." Id. 251(b). An "incumbent local

exchange carrier" (i.e., a telephone service provider in existence

when the Act was passed, see id. 251(h)) is further obligated to

provide interconnection with its network and "unbundled" access to

individual network elements on "just, reasonable, and

nondiscriminatory" terms and to offer its services for resale at

wholesale rates. Id. 251(c).

Section 252 provides the means of enforcement for the

requirements that 251 places on incumbent local exchange

carriers. See 47 U.S.C. 252. It sets out procedures for

negotiation, arbitration, and approval of interconnection or

service agreements between incumbent local exchange carriers and

other carriers. See id.; see also Puerto Rico Tel. Co. v.

Telecommunications Regulatory Bd., Slip Op. at 13-32 (1st Cir. Aug.

__, 1999) (discussing 252).

Section 253 is aimed at those who might impede the open

competition engendered by 251 and 252. Section 253(a) ensures

that state and local regulations do not serve as barriers to entry

into the telecommunications market:

No State or local statute or regulation, or other State

or local legal requirement, may prohibit or have the

effect of prohibiting the ability of any entity to

provide any interstate or intrastate telecommunications

service.

47 U.S.C. 253(a). Congress apparently feared that some states

and municipalities might prefer to maintain the monopoly status of

certain providers, on the belief that a single regulated provider

would provide better or more universal service. Section 253(a)

takes that choice away from them, thus preventing state and local

governments from standing in the way of Congress's new free market

vision. Cf. Town of Amherst v. Omnipoint Communications Enters.,

Inc., 173 F.3d 9, 12-16 (1st Cir. 1999) (discussing 47 U.S.C.

332(c)(7)(B)(i), a similar provision in the TCA which provides

that "the regulation of . . . personal wireless service facilities

. . . shall not prohibit or have the effect of prohibiting the

provision of personal wireless service").

However, Congress also recognized the continuing need for

state and local governments to regulate telecommunications

providers on grounds such as consumer protection and public safety,

which are separate from any intent to create or maintain barriers

to entry. Thus, it carved out safe harbors for these types of

regulations:

(b) State regulatory authority

Nothing in this section shall affect the ability of a

State to impose, on a competitively neutral basis and

consistent with section 254 of this section, requirements

necessary to preserve and advance universal service,

protect the public safety and welfare, ensure the

continued quality of telecommunications services, and

safeguard the rights of consumers.

Nothing in this section affects the authority of a State

or local government to manage the public rights-of-way or

to require fair and reasonable compensation from

telecommunications providers, on a competitively neutral

and nondiscriminatory basis, for use of public

rights-of-way on a nondiscriminatory basis, if the

compensation required is publicly disclosed by such

government.

47 U.S.C. 253(b),(c).

These subsections take the form of savings clauses,

preserving certain state or local laws that might otherwise be

preempted under 253(a). At the same time, the division between

(b) and (c) seems to define the boundaries of each body's

regulatory authority: it suggests that states may regulate broadly

with respect to public safety and welfare, service quality, and

consumer protection, while local governments, in addition to any

powers specifically delegated by the state, have narrower residual

authority to manage and demand compensation for the use of their

rights of way. See AT&T Communications of the Southwest, Inc. v.

City of Dallas, 8 F. Supp. 2d 582, 591 (N.D. Tex. 1998) (noting

that while "the more general authority" of 253(b) is reserved for

the states, they have the power to delegate such authority to local

governments); In re TCI Cablevision, 12 F.C.C.R. 21,396, 102-104,

109 (Sept. 19, 1997) (stating that (b) and (c) define the subject

area of permissible regulation at the state and local level).

Other aspects of 253(b) and (c) are less clear. One

open question is whether state or local regulations that are not

competitively neutral or nondiscriminatory necessarily constitute

violations of 253(a). If so, then 253(b) and (c) are only

savings clauses, which happen to restate, in different terms, the

general rule of 253(a). If, on the other hand, a regulation

could fail to be competitively neutral or nondiscriminatory without

constituting a de facto prohibition on entry, then (b) and (c)

could be read to impose requirements of "competitive neutrality"

and "nondiscrimination" that are separate from 253(a)'s

restriction against "prohibitions on entry."

If the latter interpretation were correct, then an

additional question would arise: how could the putative

"competitive neutrality" and "nondiscrimination" requirements be

enforced? The next subsection of 253 could be read to provide a

partial answer to this question:

(d) Preemption

If, after notice and an opportunity for public comment,

the Commission determines that a State or local

government has permitted or imposed any statute,

regulation, or legal requirement that violates subsection

(a) or (b) of this section, the Commission shall preempt

the enforcement of such statute, regulation, or legal

requirement to the extent necessary to correct such

violation or inconsistency.

Id. 253(d). The creation of an enforcement mechanism for

253(b) suggests that this provision, while styled as a savings

clause, also imposes a requirement on state regulation that is

separate from that imposed by 253(a). On this reading, the FCC

would be able to enforce the requirement under 253(d).

But 253(d) raises more questions than it answers. It

is not clear, for instance, whether Congress intended FCC

preemption to be the sole means of enforcing 253(a) and (b), or,

if a private cause of action does exist to enforce either of these

subsections, whether the FCC is intended to have primary

jurisdiction. Compare, e.g., GST Tucson Lightwave, Inc. v. City of

Tucson, 950 F. Supp. 968, 970 (D. Ariz. 1996) (assuming that

253(d) was meant to be an exclusive remedy for violations of

253), with City of Abilene v. FCC, 164 F.3d 49, 51-52 (D.C. Cir.

1999) (deciding a 253(a) preemption claim on the merits), Bell

Atlantic-Maryland, Inc. v. Prince George's County, 1999 WL 343646,

at *6 (D. Md. 1999) (assuming that a cause of action exists to

bring a 253(a) claim), and AT&T Communications, 8 F. Supp. 2d at

589 (rejecting the argument that the FCC has primary jurisdiction

over 253(a) claims).

In addition to these uncertainties, Section 253(d) raises

questions about the proper analysis of 253(c). If 253(b)

imposes a restriction separate from the one in 253(a), it would

seem most natural for 253(c) to impose such a restriction as

well, since the language of (c) is nearly identical to the language

of (b). Yet Congress chose to include (b), and not (c), under the

FCC preemption provision of 253(d). There are at least two ways

to understand this choice.

One explanation is that Congress intended 253(c) (if

not 253(b)) to be a savings clause only. Under this

interpretation, 253(c) could only be used defensively, in the

context of a 253(a) challenge; the statute would simply not apply

to local regulations that are not competitively neutral and

nondiscriminatory but nonetheless do not constitute prohibitions on

entry. See GST Tucson Lightwave, 950 F. Supp. at 971 (adopting

this interpretation of 253).

Alternatively, the exclusion of 253(c) from 253(d)

might reflect Congress's selection of a forum for 253(c) claims,

limiting jurisdiction to federal or state courts instead of forcing

municipalities with limited resources to defend rights-of-way

regulations and fee structures before the FCC in Washington, D.C.

Cablevision argues for this reading, which has been adopted by a

number of courts on statutory interpretation and legislative

history grounds. See, e.g., TCG Detroit v. City of Dearborn, 977

F. Supp. 836, 840 (E.D. Mich. 1997) (finding that "the implication

[of 253(d)'s exclusion of 253(c)] is that any violation of

253(c) could not be preempted [by the FCC] but rather would have to

be[] challenged locally" and that legislative history supports this

interpretation). If this interpretation were correct, it would

become necessary to decide whether the proper cause of action for

a 253(c) claim is created by 253(c) itself or arises from some

other source.

We prefer to reserve judgment on these questions, since

they are not, in the end, dispositive of this appeal and so may be

viewed as theoretical. Because the TCA is extremely complex and

its provisions highly interrelated, it is wiser to interpret it

only as needed in light of specific facts. Like the district

court, we will assume arguendo that 253(c) does impose a

"competitively neutral and nondiscriminatory" requirement and that

a cause of action exists to enforce that requirement. We turn now

to a subset of statutory interpretation questions regarding the

scope of this assumed requirement.

B. Scope of the "Competitively Neutral and

Nondiscriminatory" Requirement

According to Cablevision, the City's obligation to manage

its grant-of-location process in a competitively neutral and

nondiscriminatory manner can be read directly from the language of

253(c). The district court disagreed, finding that "[t]he syntax

of [ 253(c)] renders its meaning ambiguous," and in particular,

that "[i]t is not clear whether the phrase 'competitively neutral

and nondiscriminatory' applies only to the compensation that can be

required, . . . or whether it also applies to the management of

public ways . . . ." Cablevision, 38 F. Supp. 2d at 58.

As a matter of bare syntax, we find the language to be

unambiguous: the phrase "on a competitively neutral and

nondiscriminatory basis" can only apply to compensation schemes,

not management decisions. To see why this is so, it is necessary

to look closely at that phrase in context:

Nothing in this section affects the authority of a State

or local government to manage the public rights-of-way or

to require fair and reasonable compensation from

telecommunications providers, on a competitively neutral

and nondiscriminatory basis, for use of public

rights-of-way on a nondiscriminatory basis, if the

compensation required is publicly disclosed by such

government.

47 U.S.C. 253(c) (emphasis added). The scope of the emphasized

language would be ambiguous if the text following the emphasized

phrase were omitted. In that case, the sentence would present what

linguists label a "prepositional phrase attachment" problem, i.e.,

an ambiguity arising from the fact that a prepositional phrase

within a sentence might "attach" to the sentence's syntactic

structure at more than one level. See Akmajian et al.,

Linguistics: An Introduction to Language and Communication 169-70

(1995) (giving a representation for such structural ambiguities).

But no such attachment problem is presented here.

In context, the emphasized language can only modify the

immediately preceding phrase, "to require fair and reasonable

compensation from telecommunications providers." There is a

technical linguistic basis for this reading: because -- for

semantic rather than syntactic reasons -- the following phrase "for

use of public rights-of-way on a nondiscriminatory basis" can only

attach to the phrase "to require fair and reasonable compensation

from telecommunications providers," it "traps" the phrase "on a

competitively neutral and nondiscriminatory basis" at this same

level. And contrary to Cablevision's argument, the commas

surrounding the phrase "on a competitively neutral and

nondiscriminatory basis" do not automatically alter the phrase's

syntactic scope; the commas merely enhance the readability of

253(c) without changing its syntax. Even apart from technical

linguistic rules, there is a strong argument that the plain meaning

of the statute, despite the contrary interpretation by the FCC and

other courts, is that "on a competitively neutral and

nondiscriminatory basis" does not refer to management of rights of

way at all.

But the task of statutory interpretation involves more

than the application of syntactic and semantic rules to isolated

sentences. Even plain meaning can give way to another

interpretation if necessary to effectuate Congressional intent.

See Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 825 (1st

Cir. 1992) ("Terms in an act whose meaning may appear plain outside

the scheme of the statute can take on a different meaning when read

in their proper context.... In short, the plain-meaning doctrine

is not a pedagogical absolute."); SEC v. Lehman Bros., Inc., 157

F.3d 2, 8 (1st Cir. 1998) ("literal language does not always

prevail"). Rather than "culling selected words [or sentences] from

a statute's text and inspecting them in an antiseptic laboratory

setting, a court engaged in the task of statutory interpretation

must examine the statute as a whole, giving due weight to design,

structure, and purpose as well as to aggregate language."

O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir. 1996); see also

King v. St. Vincent's Hospital, 502 U.S. 215, 221 (1991) ("[T]he

cardinal rule [is] that a statute is to be read as a whole, since

the meaning of statutory language, plain or not, depends on

context." (citation omitted)).

At times, an examination of the context of disputed

language can lead courts to decide that a linguistically

implausible interpretation best reflects the legislature's intent.

Section 253(c) may require this sort of generous reading. See

California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284

(1987); Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983)

("It is a well-established canon of statutory construction that a

court should go beyond the literal language of a statute if

reliance on that language would defeat the plain purpose of the

statute...."); Watt v. Alaska, 451 U.S. 259, 266 (1981) ("The

circumstances of the enactment of particular legislation may

persuade a court that Congress did not intend words of common

meaning to have their literal effect."); United Steelworkers v.

Weber, 443 U.S. 193, 201 (1979) (rejecting literal reading of

statute in light of Congressional purposes in enacting statute).

To the extent that Congress intended to impose any requirement that

local regulations be "competitively neutral and nondiscriminatory,"

the larger context suggests that it would have wanted to impose

that requirement on both management of rights of way and

compensation schemes, since discriminatory or competitively slanted

management of the public rights of way could interfere with open

competition among telecommunications providers just as easily as

discriminatory or competitively slanted compensation schemes.

At present, the weight of authority seems to favor this

contextual interpretation of 253(c) over a literal, syntactically

accurate one. The FCC did appear to limit the "competitively

neutral and nondiscriminatory" language to compensation schemes in

its Suggested Guidelines for Petitions for Ruling Under

Section 253, 63 Fed. Reg. 66,806 (1998). See id. at 66,808

(including the following in the list of questions for filers to

answer: "Does the challenged statute, regulation, ordinance, or

legal requirement pertain to the management of, or compensation for

access to, rights-of-way? . . . If compensation is involved, is it

fair and reasonable and required on a competitively neutral and

nondiscriminatory basis?"). But in its decisions, the FCC has

clearly adopted -- without any discussion -- the broader reading of

253(c). See In re Classic Telephone, Inc., 11 F.C.C.R. 13,082,

39 (Oct. 1, 1996); TCI Cablevision, 12 F.C.C.R. at 108. Courts

and commentators have also adopted the broader reading without

considering the possibility that the phrase "competitively neutral

and nondiscriminatory" does not refer to the management of rights

of way. See, e.g., TCG Detroit, 977 F. Supp. at 840-41 (assuming

the broader reading without discussion); Worstell, Note, Section

253 of the Telecommunications Act of 1996: A Permanent Physical

Appropriation of Private Property that Must Be Justly Compensated,

50 Fed. Comms. L. J. 441, 447-49 (1998) (decrying the effects of

the broader reading without mentioning the syntactically more

plausible narrow reading). But see AT&T Communications, 8 F. Supp.

2d at 587 (adopting narrow reading without discussion).

Cablevision's reading of 253(c) is not frivolous. But

once again, we choose to set aside a difficult interpretative

question when the answer to that question is not dispositive of the

appeal. We will assume arguendo that the phrase "competitively

neutral and nondiscriminatory" in 253(c) refers to the City's

management of its rights of way and focus our analysis on the

interpretation of that phrase.

C. Managing Rights of Way "on a Competitively Neutral

and Nondiscriminatory Basis"

The critical issue for our purposes -- and the point on

which the parties actually disagree -- is whether the City has

violated any obligation under 253(c) to manage its public rights

of way so as to enhance the level of competition in the Boston

telecommunications market.

To understand the parties' differing positions on this

issue, it is helpful to first consider the many points on which the

parties seem to agree.

First, the parties have sensibly centered their arguments

on the term "competitively neutral," since Cablevision does not,

and could not, seriously dispute the district court's conclusion

that the City has managed its rights of way in a nondiscriminatory

manner. As long as the City makes distinctions based on valid

considerations, it cannot be said to have discriminated against

Cablevision in favor of Boston Edison. Here, as the district court

points out, those valid considerations are obvious:

Constructing new conduit requires digging up the City's

streets and attendant disruption. Putting new cable in

existing conduit or converting existing cable to new uses

does not require digging up streets or disruption. Thus,

it is not discrimination for the City to have different

policies for the construction of conduit that is new and

for the conversion of the uses to which existing conduit

can be put.

Cablevision, 38 F. Supp. 2d at 60.

Second, the parties seem to agree that the City's new

oral policy regarding the conversion of cable or conduit complies

with 253(c)'s competitive neutrality requirement, because it

results in equivalent notice obligations for all market

participants. Assuming that the policy requires Boston Edison to

petition for amended grants of location before it converts cable or

conduit, competitors receive notice before new cable is pulled

through existing conduit (or alternatively, before cable is put to

a new use) as well as before new conduit is installed.

Cablevision does make a halfhearted effort to argue that,

in order to achieve competitive neutrality, the City's policy on

conversions would have to impose requirements identical to those

imposed by the City's policy for the construction of new conduit,

including the requirement that shadow conduit be built alongside

any converted cable or conduit. But Cablevision does not insist on

this interpretation -- perhaps because it so obviously runs counter

to Congress's intent in 253(c) to "allow[] [local governments] to

preserve the physical integrity of streets and highways." TCI

Cablevision, 12 F.C.C.R. at 103.

Instead, Cablevision seems to view the competitive

neutrality requirement as limited by an implicit practicability

constraint. As Cablevision reads 253(c), it requires the City to

manage its rights of way in order to enhance competitive neutrality

-- but only to the extent that this goal is practicable for the

City. It is clearly not practicable to force those who are merely

converting conduit or cable to take the same steps as those

installing new conduit, and thus to incur all the same costs, since

this could result in significant disruption of Boston's streets.

Perhaps for this reason, Cablevision's interpretation of

the competitive neutrality requirement centers on the need to

ensure early notice of competitors' activities rather than a need

to equalize costs across competitors: in its view, 253(c)

requires the City to use its grants of location process to ensure

that telecommunications providers have the maximum information

available regarding their competitors' cable networks. Here again,

the parties seem to agree. Without explicitly conceding the point,

the City seems to assume that it is desirable for local

authorities, whether mandated by 253(c) or not, to seek to

enhance competition among providers by maximizing the sharing of

information among them.

Thus, while the parties are not in perfect agreement,

their only point of fundamental disagreement concerns the burden

any 253(c) competitive neutrality requirement would have imposed

during the time period between the enactment of the TCA and the

City's adoption of the conduit conversion policy, some two years

later. Cablevision argues that the competitive neutrality

requirement applied with full force from the moment of the TCA's

enactment. The City pleads instead for the application of some

sort of grace period that would allow it sufficient time to conform

its regulatory scheme to the statute's less than transparent

language.

Rather than settling this disagreement, we reject its

underlying premise. The disagreement is premised on the idea that

Congress intended the phrase "competitively neutral" to place an

affirmative obligation on local authorities -- an obligation to

enact regulations that create effective competition among

telecommunications providers. We find this interpretation

implausible, on a number of grounds.

Most obvious is the form of 253(c) itself. If Congress

meant to impose an affirmative obligation on local authorities to

promulgate regulations to ensure a level playing field among

telecommunications providers, it would not be likely to bury that

obligation in the middle of a savings clause to a preemption

provision.

The legislative history of the statute is also contrary

to this interpretation. Although Congress located the phrase

"competitively neutral and nondiscriminatory" within a savings

clause, there is a fair amount of support for the argument that

Congress intended this phrase to impose a negative restriction on

local authorities' power to regulate. See, e.g., 141 Cong. Rec.

H8460, H8461 (daily ed. Aug. 4, 1995) (discussing the need to

ensure that cities' franchise fee schemes treat competitors

equally). But there is no evidence to suggest that Congress

intended the phrase to impose on local governments an affirmative

obligation to enact regulations. If the phrase were meant to

impose such an obligation, this point would surely have been

mentioned prominently in the legislative history.

Common sense also argues against "affirmative obligation"

reading of 253(c). If Congress directly obligated local

authorities to regulate toward certain ends (outside of the context

of conditional federal funding), local authorities would need to

keep a constant watch over Congress's activities, so that they

could respond in a timely manner with the necessary regulations.

This continuing obligation could place a great burden on local

resources. The text and legislative history of 253 show no

desire on Congress's part to impose such a burden.

Finally, we note that an affirmative obligation reading

of the term "competitively neutral" would raise significant

constitutional issues regarding Congress's ability to commandeer

local regulatory bodies for federal purposes. See Printz v. United

States, 521 U.S. 898, 934 (1997) ("The Federal Government may [not]

issue directives requiring the States to address particular

problems . . . ."); id. at 961 (Stevens, J., dissenting) (agreeing

that the notion of "cooperative federalism" does not include a

direct "mandate to state legislatures to enact new rules"); id. at

975 (Souter, J., dissenting) (agreeing with the majority that

"Congress may not require a state legislature to enact a regulatory

scheme"). This consideration again makes it unlikely that Congress

intended to include such an affirmative obligation in 253(c).

We conclude that the term "competitively neutral" in

253(c) imposes -- at most -- a negative restriction on local

authorities' choices regarding the management of their rights of

way. This means that the statute would not require local

authorities to purposefully seek out opportunities to level the

telecommunications playing field. If, however, a local authority

decides to regulate for its own reasons (e.g., to minimize

disruption to traffic patterns), 253(c) would require that it do

so in a way that avoids creating unnecessary competitive inequities

among telecommunications providers.

Cablevision is unlikely to be able to show that the City

violated this requirement. As long as the City was uninterested in

recording altered uses of existing conduit (apparently finding its

map of underground Boston adequate without this information), it

was under no obligation to record those uses for Cablevision's

benefit. Certainly nothing in 253(c) would have obligated the

City to collect and deliver to Cablevision the comprehensive

information demanded in Cablevision's proposed preliminary

injunction. The City would have been free, under 253(c), to

remain forever uninformed about Boston Edison's conversions.

Once the City concluded that it did want information

about altered uses of previously installed conduit and cable, it

began collecting that information in a manner that (to all

appearances, at least) is competitively neutral. It is easy to

imagine a conversion policy that would fail to be competitively

neutral -- for example, a policy under which only certain

applicants were required to file public petitions, while others

were allowed to keep their petitions private. But there is no such

allegation here.

In the end, Cablevision's TCA claim fails for a simple

reason: it is directed at the wrong party. The City is not the

cause of any competitive problems faced by Cablevision, and it

cannot be commandeered via 253(c) to solve problems caused by

others. In sum, Cablevision's theory fails to state a claim on

which relief may be granted.

V. STATE LAW CLAIM

Cablevision alleges that the private defendants violated

state law by acting unfairly and deceptively in order to gain a

business advantage for the Joint Venture. See Mass. Gen. Laws ch.

93A, 2(a) (forbidding "[u]nfair methods of competition and unfair

or deceptive acts or practices in the conduct of any trade or

commerce"). The district court found that Cablevision was unlikely

to prevail on this claim. We agree.

Massachusetts courts read the amorphous language of this

statute rather narrowly: in order to violate chapter 93A, "[t]he

objectionable conduct must attain a level of rascality that would

raise an eyebrow of someone inured to the rough and tumble of the

world of commerce." Quaker State Oil Refining Corp. v. Garrity Oil

Co., 884 F.2d 1510, 1513 (1st Cir. 1989) (quoting Levings v. Forbes

& Wallace, Inc., 396 N.E.2d 149, 153 (1979)); see also Johnson v.

Koplovsky Foods, Inc., 5 F. Supp. 2d 48, 55 (D. Mass. 1998).

The district court was not convinced that the defendants

acted with this level of rascality:

[A]t this point the evidence indicates that the Boston

Edison defendants made no misrepresentations to the PIC.

The Boston Edison defendants did not violate any

agreement with the PIC. The Boston Edison defendants did

not violate any policy adopted by the PIC concerning the

conversion of existing conduit or cable to

telecommunications uses.

Cablevision, 38 F. Supp. 2d at 61. The court's evaluation of the

defendants' behavior was not clearly erroneous; to the contrary, it

is well supported by the record.

This conclusion does not end the analysis, though, since

one can commit a chapter 93A violation without behaving like a

"rascal," if one violates consumer protection or public safety

laws. See PMP Assocs., Inc. v. Globe Newspaper Co., 321 N.E.2d

915, 917-18 (Mass. 1975); Piccuirro v. Gaitenby, 480 N.E.2d 30, 33-

34 (Mass. 1985); Mass. Regs. Code tit. 940, 3.16 (1978).

Cablevision argues that Boston Edison violated two public safety

laws, Mass. Gen. Laws ch. 166, 21 and 22, and thus violated

chapter 93A as well. We find that Cablevision is not likely to

prevail on either point. Regardless of whether these laws qualify

as public safety or consumer protection laws, see Cablevision, 38

F. Supp. 2d at 62 (rejecting this contention), it does not appear

that Boston Edison's conversion of cable and conduit violated

either 21 or 22.

Section 21 provides, in relevant part:

A company incorporated for the transmission of

intelligence by electricity or by telephone, whether by

electricity or otherwise . . . or for the transmission of

electricity for lighting, heating or power, . . . may,

under this chapter, construct lines for such transmission

upon, along, under and across the public ways . . . .

Mass. Gen. Laws. ch. 166, 21 (emphasis added). Cablevision

claims that the emphasized language means that "telecommunications

companies can place lines for telecommunications . . . and electric

companies can place lines for 'transmission of electricity,' but

not for any other purpose." This argument is creative, but not

convincing. If 21 is read as a whole, it becomes evident that

its purpose is not to control the uses to which different types of

companies may put their lines, but rather to specify where those

lines may be constructed.

The district court gave a detailed and able analysis of

22, which need not be repeated here. See Cablevision, 38 F.

Supp. 2d at 61-62. We find that Cablevision is unlikely to prevail

on its 22 claim, because 22, which was enacted in 1849 and most

recently amended in 1925, simply does not speak to the issue of

conduit conversion.

VI. CONCLUSION

"Likelihood of success is the touchstone of the

preliminary injunction inquiry." Philip Morris, Inc., v.

Harshbarger, 159 F.3d 670, 673 (1st Cir. 1998). The order of the

district court denying the motion for a preliminary injunction is

affirmed. The district court should consider whether dismissal of

this action is warranted in light of this opinion. Costs to

appellees.

- Concurrence Follows -

NOONAN, Senior Circuit Judge, concurring in the result.

On February 8, 1996 the Telecommunications Act of 1996 became law.

See Pub. L. No. 104-104, 1996 U.S.C.C.A.N. (110 Stat. 56) 161. The

act was a major piece of legislation by the 104th Congress. It

occupies 105 pages in the United States Code Congressional and

Administrative News, Vol. I, Laws (1996). It is a comprehensive

and intricate piece of legislation. It reflects the input of

government regulators, the various industry groups affected, and

representatives of consumers and the general public. Inevitably it

is a compromise, a work of balancing values. Cf. Amherst, N.H. v.

Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir.

1999). Where it is silent, it is likely to be designedly so. See

Stowell v. Ives, 976 F.2d 65, 70 n.5 (1st Cir. 1992).

The Telecommunications Act in dealing with electronic

publishing by the Bell operating companies has a section entitled

"Private right of action," providing that any person claiming a

violation of the new law on that subject "may file a complaint with

the Commission [the Federal Communications Commission] or bring

suit as provided in section 207 of this title." 47 U.S.C.

274(e). The cross-reference to 207 is to a provision of law

preceding the Telecommunications Act that is entitled "Recovery of

damages" and declares that any person claiming to be damaged by any

common carrier subject to this chapter "may either make complaint

to the Commission [the F.C.C.] as hereinafter provided for, or may

bring suit for the recovery of the damages . . . in any district

court of the United States of competent jurisdiction." Id. 207.

Dealing with illegal changes in subscriber carrier

selections, the Telecommunications Act provides: "Any

telecommunications carrier that violates the verification

procedures described in subsection (a) of this section and that

collects charges for telephone exchange service or telephone toll

service from a subscriber shall be liable to the carrier previously

selected . . . in accordance with such procedures as the Commission

may prescribe. The remedies provided by this subsection are in

addition to any other remedies available by law." Id. 258(b).

Referring to the review by state commissions of

agreements for interconnection between carriers, the

Telecommunications Act states: "In any case in which a State

commission makes a determination under this section, any party

aggrieved by such determination may bring an action in an

appropriate Federal district court to determine whether the

agreement or statement meets the requirements of section 251 of

this title and this section." Id. 252(e)(6).

These provisions of law are sufficient to demonstrate

beyond doubt or cavil that when Congress intended in the

Telecommunications Act of 1996 to provide a remedy in the federal

courts for a violation of the Act it used language apt for that

purpose. Congress has not used such language in 253(c). In the

sharpest contrast, the language relied on by Cablevision in seeking

access to the federal courts by this suit reads as follows:

Nothing in this section affects the

authority of a State or local government to

manage the public rights-of-way or to require

fair and reasonable compensation from

telecommunications providers, on a

competitively neutral and nondiscriminatory

basis, for use of public rights-of-way on a

nondiscriminatory basis, if the compensation

required is publicly disclosed by such

government.

Id. 253(c).

It reads the statute backwards to infer from "Nothing

affects the authority . . . ," the authorization of a private suit

objecting to the exercise of that authority. A savings clause is

interpreted as a clause permitting the imposition of liability. A

safe harbor for state or local managers of public roads is turned

into a trap for them and a spring gun for telecommunications

providers. The language of 253(c) is so far from the language

Congress used when authorizing such suits that only violent

wrenching of the text can serve to squeeze such a sense out of it.

Not only is this squeezing contrary to the plain meaning

of the statute, it runs counter to the statutory scheme of 253

itself. That section begins forthrightly, "No State or local

statute or regulation, or other State or local legal requirement,

may prohibit or have the effect of prohibiting the ability of any

entity to provide interstate or intrastate telecommunications

service." Id. 253(a). Subsection (b) then provides that a State

may impose certain conditions "on a competitively neutral basis and

consistent with section 254 of this section." Id. 253(b). The

FCC is given authority by subsection (d) to preempt the enforcement

of "any statute, regulation, or legal requirement that violates

subsection (a) or (b)." Id. 253(d).

The statutory scheme is evident: The Commission is to

assure that state or local regulation does not frustrate the

competitive policies the Act is designed to promote. There is no

thought that a separate forum is furnished in the federal district

courts. To find such a forum here is to destroy the delicate

balance between the federal and the local that the Act has struck.

See Amherst, 173 F.3d at 13.

Cablevision seeks to tease out of the silence as to the

FCC's jurisdiction over subsection (c) an implied right of action

in the federal district courts. The silence is easily explained.

If any state or local statute, regulation or requirement "has the

effect" of prohibiting an entity from providing telecommunications

service, subsection (a) is violated and the Commission under

subsection (d) has authority to act. There is no need to provide

a remedy under subsection (c). If Cablevision has a case for

discriminatory, anti-competitive action by the City, subsection (d)

has assigned the remedy to the FCC.

Cablevision's only argument to the contrary is as

counter-intuitive as its reading of the statute. Cablevision

points to a version of the bill that was not passed as proof that

subsection (c) was meant to afford access to the federal courts!

No circuit court has given heed to this argument.

Abilene, Texas v. F.C.C., 164 F.3d 49 (D.C. Cir. 1999), is a review

of a decision of the Commission. It has nothing to say on the

enforcement of 253(c) except dicta that under both (b) and (c)

there is "a large regulatory territory for State authority." Id.

at 53.

The intent of Congress not to provide a private cause of

action, explicitly or implicitly, in 253(c) is dispositive. See

Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979).

Cablevision has no basis for its suit under 253(c). There is no

occasion to take up the other issues thoughtfully explored by the

opinion of the court. There is no reason to retain the state

claim. There is no point in prolonging the possibility that

253(c) provides a cause of action. There is no need to let the

case go on. The district court should be directed to enter

judgment for the defendants.