Qwest Corp. v. City of Kent

139 P.3d 1091
CourtWashington Supreme Court
DecidedAugust 10, 2006
Docket78293-8
StatusPublished

This text of 139 P.3d 1091 (Qwest Corp. v. City of Kent) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Qwest Corp. v. City of Kent, 139 P.3d 1091 (Wash. 2006).

Opinion

139 P.3d 1091 (2006)

Certification from the United States District Court for the Western District of Washington at Seattle in QWEST CORPORATION, Plaintiff,
v.
CITY OF KENT, Defendant.

No. 78293-8.

Supreme Court of Washington, En Banc.

Argued May 23, 2006.
Decided August 10, 2006.

David R. Goodnight, John H. Ridge, Loren G. Armstrong, Stoel Rives LLP, Seattle, for Petitioner/Appellant.

Michael L. Charneski, Attorney at Law, Bothell, Thomas C. Brubaker, City of Kent Legal Department, Kent, for Appellee/Respondent.

*1092 C. JOHNSON, J.

¶ 1 This case involves two certified questions from the United States District Court for the Western District of Washington. First, we are asked to determine what the legislature intended when it used the term "aerial supporting structures" in RCW 35.99.060(3)(b). Second, we are asked to determine if a telecommunications company that is entitled to reimbursement under RCW 35.99.060(3)(b) is entitled to recover the full incremental cost of the relocation or only a proportionate share of the cost based on the number of "aerial supporting structures" owned. The United States District Court noted an absence of either Washington case law or legislative history providing guidance on these issues. The court observed that any interpretation it imposed on the statute would be purely speculative, would not be binding, and would do little to settle the question for future litigants. Because the issue could arise again, the United States District Court stayed the federal court action and certified the issues to this court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Defendant, the city of Kent (Kent), required plaintiff, Qwest Corporation (Qwest), to relocate its aerial telecommunications facilities in three different areas and move them to underground locations pursuant to RCW 35.99.060(1). The first project was located along First and Fourth Streets in Kent; the second project was located along Russell Road in Kent; the third project was located along Pacific Highway in Kent. Qwest complied with Kent's requirement and, pursuant to RCW 35.99.060(3)(b), submitted a bill to Kent for the difference in costs between a hypothetical aerial to aerial relocation and the actual aerial to underground relocation for each project. According to Qwest, it is entitled to $538,015.58 from Kent for all three projects.

¶ 3 Although Kent agrees Qwest is entitled to reimbursement under the statute, Kent disputes the amount of reimbursement it owes. Accordingly, Kent refused to pay Qwest's bill. Qwest filed an action in United States District Court. Both parties filed cross-motions for partial summary judgment on the statutory interpretation issues. The United States District Court, after hearing arguments on the motions, certified the questions to this court.

CERTIFIED QUESTIONS

(A) Does the term "aerial supporting structures" as used in RCW 35.99.060(3)(b) mean only
(1) the wide variety of telecommunications and electrical poles, glu-lams, "push-brace" poles, H-frames, towers and similar structures to which providers may attach their wires in order to suspend them in the air, or does it also include
(2) all other attachments and hardware that keep telephone wires in the air, including but not limited to strand, bolts, cross-arms, guy wires, brackets and other hardware associated with these items?
(B) Where aerial to underground relocation of authorized facilities is required by a city or town under RCW 35.99.060(1), for service providers with an ownership share of the "aerial supporting structures," is the city required to reimburse the full additional incremental cost of underground compared to aerial location or only the additional incremental cost proportionate to the percentage of "aerial supporting structures" owned by the service provider?

ANALYSIS

¶ 4 Telecommunications companies, when placing their facilities,[1] often use public rights-of-way owned by a city or town. The *1093 use of these rights-of-way by the companies is governed by chapter 35.99 RCW. The city or town that owns the right of way has the authority to require the company to relocate its facilities when reasonably necessary. RCW 35.99.060(1). Generally, the telecommunications company, also called a service provider, must bear the cost of relocation. However, the legislature carved out three exceptions to this rule, only one of which is at issue here. Under the exception at issue, the service provider may seek reimbursement when the city requires an aerial to underground relocation and the service provider has an ownership share in the aerial supporting structures. RCW 35.99.060(3)(b). Here, Kent required Qwest to relocate its facilities from an aerial to an underground location pursuant to RCW 35.99.060(1). Qwest argues that it is entitled to reimbursement for the relocation under RCW 35.99.060(3)(b). Kent agrees Qwest is entitled to reimbursement under this exception, but disputes the amount of money Qwest is entitled to recover. Specifically, the parties dispute the definition of the term "aerial supporting structures" and whether the statute requires a proportionate reimbursement scheme.

Aerial Supporting Structures

¶ 5 Qwest argues the term "aerial supporting structures" is not limited to poles or pole-like structures, but instead includes strand, down-guys, cross-arms, and any other attachment hardware used to keep aerial cable supported.[2] Qwest asserts its definition is supported by the plain and ordinary meaning of the term, by the legislative history of the statute, and by the fact that the disputed term is a term of art in the telecommunications industry.

¶ 6 Kent contends that the term "aerial supporting structures" means telephone poles, cable television poles, power transmission and power distribution poles, H-frames, glu-lams, and towers.[3] Kent argues the legislature could not have intended the term to include strand or other attachment hardware because a service provider always owns its cable, strand, and hardware even if it does not own the poles to which they are attached. Kent points out that, under Qwest's definition, the telecommunications company would always have an ownership share in the "aerial supporting structures." Thus, the statute's explicit requirement that a service provider have an ownership share in the aerial supporting structures would be superfluous.

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139 P.3d 1091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/qwest-corp-v-city-of-kent-wash-2006.