PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BELL ATLANTIC MARYLAND,
INCORPORATED,
Plaintiff-Appellee,

v.

PRINCE GEORGE'S COUNTY,
MARYLAND,
Defendant-Appellant,

and

WAYNE K. CURRY, County
Executive; HOWARD W. STONE, JR.,
Chief Administrative Officer;
BARBARA L. HOLTZ, County
Attorney; BETTY HAGER FRANCIS,
Director, Department of Public
                                    No. 99-1784
Works and Transportation,
Defendants.

NATIONAL LEAGUE OF CITIES;
MONTGOMERY COUNTY COUNCIL;
KMC TELECOM, INCORPORATED;
ADELPHIA BUSINESS SOLUTIONS,
formerly known as Hyperion
Telecommunications, Incorporated;
LEVEL 3 COMMUNICATIONS LLC;
ALLEGIANCE TELECOM, INCORPORATED;
THE ASSOCIATION FOR LOCAL
TELECOMMUNICATIONS SERVICES
("ALTS"); E.SPIRE COMMUNICATIONS,
INCORPORATED; INTERMEDIA
COMMUNICATIONS, INCORPORATED;
METROMEDIA FIBER NETWORK
SERVICES, INCORPORATED; NET2000
COMMUNICATIONS SERVICES,
INCORPORATED; NEXTLINK
COMMUNICATIONS; AT&T
COMMUNICATIONS OF MARYLAND,
INCORPORATED; SBC
COMMUNICATIONS, INCORPORATED,
Amici Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-98-4187-CCB)

Argued: February 29, 2000

Decided: May 15, 2000

Before WIDENER and LUTTIG, Circuit Judges, and
G. Ross ANDERSON, Jr., United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded with instructions by published opinion. Judge
Widener wrote the opinion, in which Judge Luttig and Judge Ander-
son joined.

_________________________________________________________________

COUNSEL

ARGUED: Nicholas Patrick Miller, MILLER & VAN EATON,
P.L.L.C., Washington, D.C., for Appellant. James Petty Garland,
MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellee.
ON BRIEF: William Malone, MILLER & VAN EATON, P.L.L.C.,

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Washington, D.C.; Sean D. Wallace, County Attorney, PRINCE
GEORGE'S COUNTY, Upper Marlboro, Maryland, for Appellant.
Jefferson V. Wright, Matthew S. Sturtz, Brian D. Craig, MILES &
STOCKBRIDGE, P.C., Baltimore, Maryland; Robert D. Lynd, Assis-
tant General Counsel, BELL ATLANTIC-MARYLAND, INC., Balti-
more, Maryland, for Appellee. Tillman L. Lay, MILLER,
CANFIELD, PADDOCK & STONE, P.L.C., Washington, D.C., for
Amicus Curiae League of Cities. Michael W. Cogan, MONTGOM-
ERY COUNTY COUNCIL, Rockville, Maryland; James N. Hor-
wood, Scott H. Strauss, Tony Lin, SPIEGEL & MCDIARMID,
Washington, D.C., for Amicus Curiae County Council. Michael J.
Lichtenstein, Jeffrey M. Karp, L. Elise Dieterich, SWIDLER, BER-
LIN, SHEREFF, FRIEDMAN, L.L.P., Washington, D.C., for Amici
Curiae KMC Telecom, et al. Robert W. McCausland, Vice President,
Regulatory and Interconnection, ALLEGIANCE TELECOM, INC.,
Dallas, Texas; Emily Williams, THE ASSOCIATION FOR LOCAL
TELECOMMUNICATIONS SERVICES, Washington, D.C.; Heather
B. Gold, Vice President, Regulatory and External Affairs, INTER-
MEDIA COMMUNICATIONS, INC., Tampa, Florida; Jason R.
Karp, Director, Regulatory and Legal, NET2000 COMMUNICA-
TIONS SERVICES, INC., Herndon, Virginia; Danny E. Adams,
Rebekah J. Kinnett, KELLEY, DRYE & WARREN, L.L.P., Wash-
ington, D.C.; Riley M. Murphy, General Counsel, James C. Falvey,
Vice President-Regulatory Affairs, E.SPIRE COMMUNICATIONS,
INC., Annapolis Junction, Maryland; Dennis E. Codlin, Vice
President-Legal Affairs, METROMEDIA FIBER NETWORK
SERVICES, INC., East Rutherford, New Jersey; A. Michael
Schwarzwalder, V.P. Regional General Counsel, NEXTLINK COM-
MUNICATIONS, Washington, D.C., for Amici Curiae Allegiance
Telecom, et al. Matthew W. Nayden, Sharon A. Snyder, OBER,
KALER, GRIMES & SHRIVER, P.C., Baltimore, Maryland, for
Amicus Curiae AT&T Communications. Robert Edwin Davis, David
J. Schenck, HUGHES & LUCE, L.L.P., Dallas, Texas, for Amicus
Curiae SBC Communications.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

Prince George's County, Maryland appeals from the district court's
grant of judgment on the pleadings to Bell Atlantic-Maryland in Bell

                   3
Atlantic-Maryland, Inc. v. Prince George's County, Maryland, 49 F.
Supp. 2d 805 (D. Md. 1999). We vacate the order appealed from and
remand for further proceedings.

In 1998, the County enacted Ordinance CB-98-1998 regulating the
use of county owned rights-of-way by telecommunications companies
doing business in the County. Prince George's County, Md., Ordi-
nance CB-98-1998 (1998). Bell Atlantic currently supplies County
residents and businesses with telecommunications services. On
December 23, 1998, before the ordinance's effective date of January
4, 1999, Bell Atlantic brought suit against the County alleging that the
ordinance was invalid. Bell Atlantic made several federal law claims,
arguing that the ordinance violated Article 1, § 10 of the United States
Constitution, the Commerce Clause, and the Due Process Clause, that
the Federal Telecommunications Acts of 1934 and 1996 pre-empted
the ordinance under the Supremacy Clause, and that the County and
its officials violated 42 U.S.C. § 1983 by enacting the ordinance.
Under state law, among other things, Bell Atlantic claimed that by
passing the ordinance, the County had breached a 1904 County fran-
chise agreement and an 1884 state franchise with Bell Atlantic, vio-
lated Articles 2 and 24 of the Maryland Declaration of Rights, and
violated public utilities companies §§ 2-113, et seq., of the Maryland
Code. Bell Atlantic asked the court to enjoin preliminarily and perma-
nently the enforcement of the ordinance and sought compensatory
damages.

After an initial hearing, the parties obviated the need for a prelimi-
nary injunction by agreeing to maintain the status quo ante pending
a decision in the case. In the interest of expediency, the court then
directed the County to file a motion to dismiss the entire claim under
Federal Rule of Civil Procedure 12(b)(6). The County complied, and
Bell Atlantic filed a response in opposition. After hearing oral argu-
ment, the district court granted judgment on the pleadings to Bell
Atlantic. To reach this disposition, the court confined its analysis to
an examination of Bell Atlantic's claim that 47 U.S.C. § 253, a provi-
sion in the Federal Telecommunications Act of 1996, pre-empted the
ordinance. Bell Atlantic, 49 F. Supp. 2d at 813-22. The opinion stated:

          Although the parties have briefed each of the four[named
          state law] issues extensively, the court does not believe it is

                    4
          necessary to reach these complex and important state law
          issues in order to decide this case.

49 F. Supp. 2d at 822.

Generally, § 253 prohibits local and state governments from estab-
lishing barriers to the ability of telecommunications companies to
enter local markets. 47 U.S.C. § 253(a). Section 253, however, also
reserves specific powers for the local governments. At issue here are
the provisions concerning local and state governments' abilities to
manage the public rights-of-way and to collect reasonable compensa-
tion from the telecommunications providers for use of public rights-
of-way. 47 U.S.C. § 253(a)-(c). Bell Atlantic argued in its complaint
that § 253 pre-empted the provisions in the ordinance for regulating
use of County rights-of-way. After examining both the ordinance and
§ 253 in detail, the district court agreed with Bell Atlantic and found
that § 253 pre-empted the ordinance in its entirety and thus was
invalid under the Supremacy Clause of the United States Constitution.
Bell Atlantic, 49 F. Supp. 2d at 813-21. Accordingly, the court perma-
nently enjoined the County from enforcing the ordinance. Bell Atlan-
tic, 49 F. Supp. 2d at 822. As noted, the court explicitly did not
address any of Bell Atlantic's state law claims in the decision. Bell
Atlantic, 49 F. Supp. 2d at 821-22. The County now appeals.

As the district court correctly noted, courts should avoid deciding
constitutional questions unless they are essential to the disposition of
a case. Bell Atlantic, 49 F. Supp. 2d at 813 (quoting Harmon v.
Brucker, 355 U.S. 579, 581 (1958)). The district court did not follow
its own opinion, however, because the very issue it addressed, deter-
mining whether a federal statute pre-empts a state statute, is a consti-
tutional question. See Chicago and N. W. Transp. Co. v. Kalo Brick
& Tile Co., 450 U.S. 311, 317 (1981) ("[Determining whether a stat-
ute is pre-empted by federal law] `is essentially a two-step process of
first ascertaining the construction of the two statutes and then deter-
mining the constitutional question whether they are in conflict.'")
(quoting Perez v. Campbell, 402 U.S. 637, 644 (1971)). In its com-
plaint, Bell Atlantic raised at least four state law questions that it
argued provided the district court with alternate bases for granting
Bell Atlantic the relief it sought without considering any federal con-
stitutional question. Bell Atlantic, 49 F. Supp. 2d at 821-22. These

                     5
state law questions would dispose of the case if decided in Bell Atlan-
tic's favor.

In deciding the constitutional question of preemption rather than
first considering the state law questions, the district court violated the
second and fourth rules of Ashwander v. Tennessee Valley Authority,
which are in pertinent part:

          2. The Court will not "anticipate a question of constitu-
          tional law in advance of the necessity of deciding it." . . . "It
          is not the habit of the Court to decide questions of a consti-
          tutional nature unless absolutely necessary to a decision of
          the case."

          * * * *

          4. The Court will not pass upon a constitutional question
          although properly presented by the record, if there is also
          present some other ground upon which the case may be dis-
          posed of. This rule has found most varied application. Thus,
          if a case can be decided on either of two grounds, one
          involving a constitutional question, the other a question of
          statutory construction or general law, the Court will decide
          only the latter.

297 U.S. 288, 341, 346-347 (1936) (Brandeis, J., concurring) (internal
citations omitted).

In the case at hand, by deciding the constitutional question of pre-
emption in advance of considering the state law questions upon which
the case might have been disposed of, the district court committed
reversible error.

The order of the district court appealed from must be vacated and
the case remanded for further consideration consistent with this opin-
ion.

We express no opinion upon any question in this case other than
those mentioned in this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS

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