v. City of Dearborn

16 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
RALPH B. GUY, JR., Circuit Judge, concurring in part and
dissenting in part. I concur fully in the decision to affirm
summary judgment in favor of Ameritech. If the court is
correct that there is an implied private right of action, then I
concur in the court’s analysis with respect to the appeal of
TCG. However, for the reasons set forth in the concurrence
by Judge Noonan in Cablevision of Boston, Inc. v. Public
Improvements Commission, 184 F.3d 88, 107-09 (1st Cir.
1999), I believe there is no private right of action.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0081P (6th Cir.)
File Name: 00a0081p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TCG DETROIT ,
Plaintiff-Appellant (98-2034),
Plaintiff (98-2035),
v.
C ITY OF DEARBORN ,
Defendant-Appellee
(98-2034),Third-Party
Plaintiff-Appellant
(98-2035),
AMERITECH M ICHIGAN ,
INCORPORATED ,
Third-Party
Defendant-Appellee
(98-2035).
;>

1
Nos. 98-2034/2035
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 96-74338—Lawrence P. Zatkoff, Chief District Judge.
Argued: November 5, 1999
Decided and Filed: March 7, 2000

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2 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
*The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
Before: GUY and BOGGS, Circuit Judges; and HOOD,
District Judge.*
_________________
COUNSEL
ARGUED: David F. Graham, SIDLEY & AUSTIN,
Chicago, Illinois, for TCG Detroit. William Malone,
MILLER & VAN EATON, Washington, D.C., for City of
Dearborn. Joseph A. Fink, DICKINSON, WRIGHT, MOON,
VAN DUSEN & FREEMAN, Lansing, Michigan, for
Ameritech Michigan, Inc. ON BRIEF: Charles H. Polzin,
HILL, LEWIS, ADAMS, GOODRICH & TAIT, Birmingham,
Michigan, Roderick S. Coy, CLARK HILL, Okemos,
Michigan, Richard C. Marsh, CLARK HILL, Detroit,
Michigan, for TCG Detroit. William Malone, MILLER &
VAN EATON, Washington, D.C., Debra C. Walling,
Dearborn, Michigan, for City of Dearborn. Joseph A. Fink,
John M. Dempsey, DICKINSON, WRIGHT, MOON, VAN
DUSEN & FREEMAN, Lansing, Michigan, Michael A.
Holmes, Detroit, Michigan, for Ameritech Michigan, Inc.
David E. Marvin, FRASER, TREBILCOCK, DAVIS &
FOSTER, Lansing, Michigan, Gary L. Field, Harvey J.
Messing, James A. Ault, LOOMIS, EWERT, PARSLEY,
DAVIS & GOTTING, Lansing, Michigan, Michael J.
Lichtenstein, SWIDLER, BERLIN, SHEREFF &
FREIDMAN, Washington, D.C., David A. Handzo, Deanne
E. Maynard, JENNER & BLOCK, Washington, D.C., for
Amici Curiae.
BOGGS, J., delivered the opinion of the court, in which
HOOD, D. J., joined. GUY, J. (p. 16), delivered a separate
opinion concurring in part and dissenting in part.
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
15
constitutional revisions, although the law under which the
earlier contracts had been made was changed thereby as to
future contracts. The district court found Public Acts 129 and
264 to be sufficiently similar to apply case law concerning
Public Act 264 (governing utility companies) to Act 129
(governing Michigan Bell). It found support for this approach
in the fact that the Michigan Attorney General, reasoning in
just this way, had advised the Village of Roseville in 1957
that its attempt to impose a franchise fee on Ameritech was
invalid given the latter’s existing state franchise.
The district court properly looked to Michigan law for the
interpretation of the retroactivity of constitutional revisions to
pre-existing contracts, and found no support for the City’s
position. It correctly granted summary judgment to
Ameritech.
V
For the foregoing reasons the judgments of the district court
in each case are AFFIRMED.

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14 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
require its own consent to the establishment of a telephone
system within the city: “Under this statute the sole authority
of the municipality is the proper exercise of the police power,
inherent in it, to protect the public . . . . It has no authority to
impose other conditions.” Michigan Tel. Co. v. City of
Benton, 121 Mich. 512, 80 N.W. 386 (1899).
The City argues that Act 129 was abrogated by revisions to
the Michigan Constitution, adopted in 1908, of which Article
VIII § 28 provided:
No person, partnership, association or corporation
operating a public utility shall have the right to the use of
the highways, streets, alleys or other public places of any
city, village or township for wires, poles, pipes, tracks or
conduits, without the consent of the duly constituted
authorities of such city, village or township; nor to
transact a local business therein without first obtaining a
franchise therefor from such city, village or township.
The right of all cities, villages and townships to the
reasonable control of their streets, alleys and public
places is hereby reserved to such cities, villages and
townships.
This provision was retained in all substantial respects by the
Michigan Constitution of 1963, Art. VII § 29. Ameritech
contends that the revisions of 1908 do not apply retroactively.
There have been similar lawsuits involving utility
companies organized under Michigan Public Act 264, the
counterpart for utilities to Public Act 129 governing
telecommunications companies. In such suits, the Michigan
Supreme Court has taken a position similar to what is urged
by Ameritech in this case, and the district court applied the
Michigan Supreme Court’s reasoning here. See City of
Lansing v. Michigan Power Co., 183 Mich. 400, 150 N.W.
250 (1914); Village of Constantine v. Michigan Gas & Elec.
Co., 296 Mich. 719, 296 N.W. 847 (1941). Both cases held
that pre-existing franchise rights were not affected by the
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
3
_________________
OPINION
_________________
BOGGS, Circuit Judge. TCG Detroit (“TCG”), a
telecommunications provider, appeals the district court’s
grant of summary judgment to the City of Dearborn (“the
City”) on the issue of whether the City’s requirement that
TCG pay the City a certain franchise fee for the privilege of
laying fibre-optic telecommunications cable within its limits,
pursuant to a city ordinance, violates the Federal
Telecommunications Act of 1996 (“the Act”), 47 U.S.C.
§ 253. TCG had also alleged that the City’s requirement
constituted a violation of 42 U.S.C. § 1983. The district court
had earlier dismissed without prejudice TCG’s state claim,
which had alleged a violation of the Michigan
Telecommunications Act of 1995, invoking 28 U.S.C.
§ 1367(c). It adhered to that ruling, refusing to reinstate that
claim “based on a concern of jury confusion over the differing
standards applicable to the federal and state claims.” TCG
Detroit v. City of Dearborn, 977 F. Supp. 836, 841 (E.D.
Mich. 1997).
In the course of its dispute with TCG, the City also
demanded a franchise fee from an existing provider,
Ameritech Michigan (“Ameritech”), resulting in a suit which
has been consolidated with TCG’s case. The City claimed
that the Act gave it authority to charge such a fee. The district
court granted summary judgment to Ameritech on the grounds
that the Michigan law under which Ameritech was
incorporated, and its original franchise granted, prohibits the
local imposition of franchise fees on providers who had
already been granted a franchise by the State of Michigan.
The City appeals.
I
In 1994, TCG made an agreement with Detroit Edison to
lay fibre-optic telecommunications cable in the latter’s

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4 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
existing electrical conduit rights-of-way. The cable was to be
owned by Detroit Edison and in part leased back to TCG for
its use in providing telecommunications services. TCG had
laid almost eight miles of a proposed total of twenty-seven
miles of cable when the City, advised of the agreement by
Detroit Edison, objected and demanded a franchise fee before
work could proceed further.
TCG and the City began negotiations (during which the
City passed an ordinance authorizing it to collect the fees in
question) and, by June 29, 1995, had reached a tentative
agreement, memorialized in the City’s proposal of that date to
TCG. This provided for the payment by TCG of 4% of its
gross revenues, on top of a $50,000 one-time fee and up to
$2,500 in reimbursement of the City’s administrative costs.
TCG’s regional counsel accepted this proposal in principle,
suggesting amendments (among them, a provision that any
agreement would be modified to reflect future changes in
federal and state laws), in a letter dated September 22, 1995.
Meanwhile, legislation that would become the Act was
introduced in Congress in May 1995. The Act was passed in
1996, to become effective in February 1998. Believing that
this legislation foreclosed the City’s right to require the
franchise fee, TCG backed away from the agreement as it had
stood, and in a series of letters to the City between January
and March 1996 attempted to obtain a permit without
payment of the fees previously discussed. Continuing talks
with the City failed to resolve the issue, whereupon TCG
brought suit in September 1996.
In addition to alleging that the City was violating the Act,
TCG alleged discrimination against it and in favor of
Ameritech, which was not being required to pay any franchise
fee. Thereupon, the City demanded a fee of Ameritech, which
refused, prompting the City to implead it as a third-party
defendant.
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
13
also correctly rejected TCG’s argument that the fee
constituted an impermissible barrier to entry in violation of
§253(a).
Therefore, the district court’s dismissal of TCG’s suit on
motion by the City for summary judgment was proper.
IV
In its original incarnation as Michigan State Telephone
Company, Ameritech had sought and been granted a franchise
from the state upon its incorporation, in 1904, pursuant to
Michigan Public Act 129 (“Act 129”), a law passed in 1883
to provide for the organization of telephone service
companies. The provision of Act 129 relevant to the case at
bar reads as follows:
Every such corporation shall have power to construct and
maintain lines of wire or other material, for use in the
transmission of telephonic messages along, over, across,
or under any public places, streets and highways, and
across or under any of the waters in this state, with all
necessary erections and fixtures therefor: Provided, That
the same shall not injuriously interfere with other public
uses of the said places, streets, and highways, and the
navigation of said waters; to construct, provide, and
furnish instruments, devices, and facilities for use in the
transmission of such messages, and to construct,
maintain, and operate telephone exchanges and stations,
and generally to conduct and carry on the business of
providing and supervising communication by telephone,
and also the business of furnishing messenger service in
cities and towns.
Public Act 129, 1883.
The district court noted that the only limitation in Act 129
was the implied authority of a municipality to regulate in the
interest of the general welfare, as the Michigan Supreme
Court held when the City of Benton Harbor attempted to

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12 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
3The amounts in question are the same; various subordinate
provisions remaining to be settled when negotiations broke down do not
appear to have been made part of the City’s final position, the details of
which are, moreover, unclear.
the same, and that only the totality of the circumstances could
illuminate whether a fee is “fair and reasonable.”
The court found the fee in question to be both fair and
reasonable, considering the amount of use contemplated
(twenty-seven miles), the amount that other providers would
be willing to pay (three others had agreed to similar fees), and
the fact that TCG had agreed in earlier negotiations to a fee
almost identical to what it was now challenging as unfair.3
The court’s examination of this question was thorough and its
reasoning sound.
TCG also complains that since the City did not charge
Ameritech a franchise fee, doing so in TCG’s case is
discriminatory, a violation of both the Act, 47 U.S.C.
§ 253(c), and, in consequence, of 42 U.S.C. § 1983. But, as
the district court pointed out, the City did seek to charge such
a fee, resulting in the third-party suit against Ameritech also
before this court.
The fact that Ameritech prevailed before the district court
in its contention that state law prohibits the City from
subjecting it to the franchise fee charged others does not mean
that the City is thereby discriminating in Ameritech’s favor.
Possibly, if Ameritech thus enjoys a state-mandated freedom
from such fees, its competitive position is strengthened, and
it might be able, in theory, to undercut its competition; if it
did so, the result might be a barrier to entry by newcomers.
But this would be a different issue, and TCG has not alleged
that this has occurred.
Since the district court found the fee to be fair and
reasonable, and its imposition to be neither discriminatory in
intent nor, in and of itself, anti-competitive in effect, the court
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
5
On cross motions for summary judgment by all parties, the
City prevailed against TCG, the district court ruling that a fair
and reasonable franchise fee was permitted by the Act and
that TCG’s near-agreement on the terms demanded showed
that TCG itself had considered the City’s proposed fees
“reasonable.” Ameritech, however, convinced the district
court that state law, under which Ameritech’s predecessor,
Michigan State Telephone Company, had first negotiated its
franchise in 1904, precluded any local authority from altering
the franchise’s terms. The City had argued, unsuccessfully,
that the 1908 amendments to Michigan’s constitution,
expanding municipal authority over rights-of-way, could be
applied to a pre-existing chartered company.
The district court noted that the case is one of first
impression in this Circuit, this court never having had
occasion to consider the implications of the Act’s “fair and
reasonable compensation” provision. Since the district
court’s ruling, this court has had occasion to consider a case
in which the Act is, at least in part, implicated. See Michigan
Bell Tel. Co. v. Climax Tel. Co., 186 F.3d 726 (6th Cir. 1999),
amended, No. 98-1315, 2000 WL 29984, 2000 Fed. App.
0025A (6th Cir. Jan. 18, 2000). However, the instant case
requires us for the first time to construe § 253 of the Act. We
hold that the district court correctly construed § 253, and did
not err in its other rulings.
II
The immediately relevant subsections of the pertinent
section of the Act are:
§ 253. Removal of barriers to entry
(a) In general
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.

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6 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
(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.
(c) State and local government authority
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.
(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.
47 U.S.C. § 253(a)-(d).
Before considering the issues presented in this case,
however, this court must be assured that it has jurisdiction.
The district court raised the question of whether TCG has
standing to sue under the Act, and held that § 253 implies a
private right of action for those claiming barrier-to-entry
injury. See TCG Detroit v. City of Dearborn, 977 F. Supp. at
839. But other district courts have held otherwise. See, e.g.,
GST Tucson Lightwave, Inc. v. City of Tucson, 950 F. Supp.
968, 970-71 (D. Ariz. 1996) (holding no private right of
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
11
Accordingly, we hold that the Michigan district court
correctly decided in TCG that § 253(c) of the Act authorizes
a private right of action in federal court for
telecommunications providers aggrieved by a municipality’s
allegedly discriminatory or allegedly unfair and unreasonable
rates.
III
TCG attempts to characterize the City’s ordinance as a
prohibition, itself prohibited by 47 U.S.C. § 253(a).
Appellant’s Brief at 18-19. TCG then describes the fee
required to obtain the franchise as an afterthought, which
conditionally lifts that prohibited prohibition. This is
sophistry. The provider must apply for a franchise; the City
assesses a franchise fee; no fee paid, no franchise given. That
cannot “be described as a prohibition [within the meaning of
section 253(a)].” Id. at 19 (quoting AT&T Communications
of the Southwest, Inc. v. City of Austin, 975 F. Supp. 928, 939
(W.D. Tex 1997)). The issue here is not, as in AT&T
Communications, a municipality’s withholding of consent to
a franchise application, something the City never
contemplated vis à vis TCG, but rather TCG’s challenge to a
fee that the Act would appear, on its face, explicitly to permit,
if “fair and reasonable” and “competitively neutral and non-
discriminatory.”
The question then is whether the fee assessed by the City is
“fair and reasonable compensation,” within the meaning of
the Act. In concluding that it is, the district court first
examined, and rejected, TCG’s contention that this phrase,
which is not defined in the Act, should be given the same
meaning as the words “just and reasonable” in the Pole
Attachment Act, 47 U.S.C. § 224 (which applies to cable
television providers’ use of utilities’ poles). The latter defines
“just and reasonable” in terms of recovery of additional costs
borne by the utility in providing pole attachments. The court
noted that Congress did not choose to insert a comparable
definition in the Act, that “costs” and “compensation” are not

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10 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
To be sure, since Cort v. Ash, the Supreme Court has
become more restrained in its willingness to find an implied
private right of action. See Touche Ross & Co. v. Redington,
442 U.S. 560, 578 (1979) (adopting a “stricter standard” of
“congressional intent”). But a majority of the Court has not
gone so far as to hold that Cort v. Ash has been “effectively
overruled” (see Thompson v. Thompson, 484 U.S. 174, 188
(1988) (Scalia, J., concurring in the judgment)). Rather, the
Court has required some affirmative evidence of
congressional intent, in “the language and focus of the statute,
its legislative history, and its purpose.” Touche Ross, 442
U.S. at 575-76. In this case, in addition to the fact that such
a right plainly serves the purpose of the legislative scheme,
the language of the Act seems clearly to suggest that Congress
intended that a private right of action be available. Section
255, mandating access by persons with disabilities, expressly
provides that there shall be no private right of action to
enforce that section’s requirements. See 47 U.S.C. § 255(f).
The resulting implication is that the neighboring section
253(c) concerning the assessment of fair, reasonable, and
competitively neutral franchise fees, from which such limiting
language is conspicuously absent, does confer such a right.
We recognize that Judge Noonan, concurring in the result
in Cablevision, was convinced, in large part by §§ 252(e)(6),
258(b), and 274(e), that the Act is always explicit when it
contemplates a private right of action. But these subsections
refer to legal remedies in the alternative, over and above
procedures or remedies available from the Commission or
from state commissions. The subsection of § 253 authorizing
Commission action, § 253(d), pointedly omits reference to
violations of § 253(c). Thus, we believe it is incorrect to say
that reading a private right of action into § 253(c) “runs
counter to the statutory scheme of § 253 itself.” 184 F.3d at
108. A violation of § 253(c) might well not involve violating
§ 253(a); unfair or unreasonable fees need not rise to the level
of erecting a barrier to entry, while only the latter violation
authorizes the Commission to act pursuant to § 253(d).
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
7
1In AT&T Communications v. Austin, the Texas district court
nevertheless granted AT&T an injunction against the enforcement of an
Austin ordinance that, the company argued, violated both § 253(a) and (c)
of the Act by requiring municipal consent to its providing
telecommunications services. In doing so, the court found its jurisdiction
in the Supremacy Clause, ruling that the Act preempted local regulatory
authority, and that AT&T could challenge such authority on those
grounds; although it agreed with the Arizona court in GST Tucson
Lightwave, and AT&T also conceded, that the Act confers no private right
of action, the Texas district court also found neither exclusive nor primary
jurisdiction in the FCC. 975 F. Supp. at 937-39. The same approach was
followed in another Texas case. See AT&T Communications, Inc. v. City
of Dallas, 8 F. Supp. 2d 582 (1998). We are not, however, persuaded that
such a jurisdictional analysis provides a proper basis for proceeding.
2The First Circuit has said that a court can avoid this issue, in the
context of a § 253 claim, but its discussion first confuses whether a
plaintiff has standing to sue, i.e. whether a private right of action exists (a
jurisdictional question), with whether a plaintiff states a cause of action
upon which relief can be granted (a non-jurisdictional one), and then
misstates the relation between statutory and Article III standing. See
action, express or implied, for § 253 injuries); accord AT&T
Communications v. Austin, Tex., 975 F. Supp. 928, 936 (W.D.
Tex. 1997).1
Although the City does not contest as error the district
court’s holding that § 253 confers an implied private right of
action, it is incumbent on us to address this issue, since the
question of TCG’s standing implicates the United States
Constitution’s Article III case-or-controversy requirement,
which must be satisfied for a federal court to hear the case.
See Juidice v. Vail, 430 U.S. 327, 331-32 (1977) (“Although
raised by neither of the parties, we are first required to
examine the standing of appellees, as a matter of the case-or-
controversy requirement associated with Article III . . . .”). If
this requirement of Article III is not satisfied, jurisdiction is
lacking. See In re GF Corp., Nos. 92-3583, 92-3585, 1993
WL 239062, at *2 (6th Cir. June 30, 1993) (unpublished
opinion). Where jurisdiction is lacking, the court must on its
own motion dismiss the case. Fed. R. Civ. P. 12(h)(3).2

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8 TCG Detroit v. City
of Dearborn, et al.
Nos. 98-2034/2035
Cablevision of Boston, Inc. v. Public Improvement Comm’n, 184 F.3d 88,
100 n.9 (1st Cir. 1999). Article III standing may indeed be lacking where
statutory standing exists, and the First Circuit correctly cites Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), for this proposition.
It is an entirely different thing, however, to assert that a plaintiff has
Article III standing, and that this provides jurisdiction, where a statute
deprives that very plaintiff of standing to sue. Lujan cannot be turned on
its head in this manner. In any event, the Supreme Court held in Merrill
Dow Pharmaceuticals, Inc. v. Thompson that “when Congress has
determined that there should be no private, federal cause of action . . . [a
claimed] violation does not state a claim ‘arising under the Constitution,
laws, or treaties of the United States.’” 478 U.S. 804, 817 (1986). See
also Erwin Chemerinsky, Federal Jurisdiction 285 (3d ed. 1999) (“A
great many federal laws do not create private causes of action . . . . After
Merrill Dow, none of these statutes can be the basis of federal question
jurisdiction.”); Walls v. Waste Resource Corp., 761 F.2d 311, 314-16 (6th
Cir. 1985) (affirming dismissal, for lack of subject matter jurisdiction, of
a complaint resting on a non-existent private right of action).
In this case, as in GST Tucson, a telecommunications
provider claims that a municipality has violated § 253(c), and
damaged the provider, by setting rates for different providers
that are competitively biased and discriminatory, and by
charging it unfair and unreasonable rates. As the court in GST
Tucson noted, there is no express authority in this section for
a private right of action. See 950 F. Supp. at 969. The
question is then whether such a right is implied. The
disagreement between that court, and the Michigan district
court in TCG, concerns the meaning of § 253's language as
well as the statute’s broader structure.
The subsections of § 253 quoted above raise several
questions. Does (d) provide for exclusive jurisdiction of the
FCC in violations of (a) and (b), or is a private right of action
also implied? Does (d)’s omission of (c) mean that a private
right of action, instead of FCC jurisdiction, applies to
violations of (c)? Or is (c) omitted from (d) because it merely
provides a safe harbor for municipalities, such that, to be
actionable, a violation of (c) must be a violation of (a), subject
(perhaps solely) to FCC enforcement under (d)?
Nos. 98-2034/2035 TCG Detroit v. City
of Dearborn, et al.
9
Section 257, “Market entry barriers proceeding,” is devoted
entirely to mandating FCC identification and review of “entry
barriers for entrepreneurs and other small businesses in the
provision and ownership of telecommunications services and
information services . . . .” 47 U.S.C. § 257(a). This would
seem on its face to strengthen the view that the FCC has
exclusive jurisdiction over violations of § 253(a). As the
Arizona district court commented, “[e]nforcement of § 253 is
provided for in § 253(d) and § 257, further indicating an
absence of congressional intent that a private right of action
be implied.” GST Tucson, 950 F. Supp. at 970.
However, the district court whose judgment we review here
quotes to telling effect the Senate debate on § 253(d), as that
subsection is intended to relate to the safe harbor of
subsection (c). During the debate, Senator Gorton explained:
There is no preemption . . . for subsection (c) which is
entitled, “Local Government Authority,” and which is the
subsection which preserves to local governments control
over their public rights of way. It accepts the proposition
. . . that these local powers should be retained locally,
that any challenge to them take place in the Federal
district court in that locality and that the Federal
Communications Commission not be able to preempt
such actions.
977 F. Supp. at 840 (quoting 141 Cong. Rec. S 8213 (June 13,
1995) (emphasis added by the district court)).
Moreover, we are persuaded by the district court’s careful
discussion, which need not be duplicated here, of the Supreme
Court’s four-factor test in Cort v. Ash, 422 U.S. 68, 78
(1975), which provides guidance in determining whether a
Congressional statute creates an implied private right of
action. See TCG, 977 F. Supp. at 839-41. This is a test to
which the Arizona court referred in GST Tucson, but which it
failed to apply. See 950 F. Supp. at 970.

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