                                                              [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                 FILED
                             _______________             U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                     No. 99-14272              MAY 25, 2001
                                   _______________          THOMAS K. KAHN
                                                                 CLERK

                      D. C. Docket No. 98-08232-CV-WPD

BELLSOUTH TELECOMMUNICATIONS, INC.,

                         Plaintiff-Counter-Defendant-Appellee-Cross-Appellant,

      versus

TOWN OF PALM BEACH,
a Florida municipal corporation,

                         Defendant-Counter-Claimant-Appellant-Cross-Appellee.

                                   _______________

                                     No. 99-14292
                                   _______________

                      D.C. Docket No. 97-07010-CV-WPD

BELLSOUTH TELECOMMUNICATIONS, INC.,

                         Plaintiff-Counter-Defendant-Appellee-Cross-Appellant,

      versus

CORAL SPRINGS, CITY OF,

                         Defendant-Counter-Claimant-Appellant-Cross-Appellee.
                          ______________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                         ______________________________
                                   (May 25, 2001)


Before BIRCH and BLACK, Circuit Judges, and NESBITT*, District Judge.**

BIRCH, Circuit Judge:

       This appeal requires us, as a matter of first impression in this circuit, to

answer two questions pertaining to § 253 of the Telecommunications Act of 1996:

(1) what is the preemptive scope of § 253; and (2) who may seek enforcement of

the provisions of § 253? Because we disagree with the district court’s

interpretation and application of § 253, and also, in part, because amendments were

made to relevant state laws after the district court rendered judgment, we AFFIRM

the district court’s judgment in part, REVERSE in part, and REMAND to the

district court for further proceedings.




       *
         Honorable Lenore C. Nesbitt, U.S. Senior District Judge for the Southern District of
Florida, sitting by designation.
       **
       Judge Nesbitt did not participate in this decision. This decision is rendered by a
quorum. 28 U.S.C. § 46(d).

                                                2
                                   I. BACKGROUND

      In the preamble to the Telecommunications Act of 19961 (“the Act”),

Congress announced that it was passing “[a]n Act to promote competition and

reduce regulation in order to secure lower prices and higher quality services for

American telecommunications consumers and encourage the rapid deployment of

new telecommunications technologies.” 110 Stat. at 56. The provisions of the Act

were intended to supplement and amend the statutory framework established in the

Communications Act of 1934, 47 U.S.C. § 151, et seq., and the end result has been

described as a “fundamental[ ] restructur[ing of the] local telephone markets.”

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 726 (1999).

The City of Coral Springs and the Town of Palm Beach (collectively, “the Cities”)

perceived that the Act mandated changes in the way they regulated

telecommunications services providers; in response, Coral Springs passed

ordinance 97-114 and Palm Beach passed ordinance 16-97, both of which

purported to restructure the Cities’ franchising and licensing of

telecommunications service providers’ use of the public rights-of-way in

accordance with the new federal law. The Cities’ ordinances were similar in many

respects, but they adopted different approaches to several significant issues.


      1
       Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C.).

                                               3
      BellSouth was the incumbent local telephone service provider in both of the

Cities at the time the Act, and subsequently when the ordinances, were passed.

BellSouth first brought suit in federal district court against Coral Springs, seeking a

declaratory judgment that ordinance 97-114 was preempted both by Florida state

law and by § 253 of the Act. Coral Springs filed a counterclaim for breach of

contract in which it sought to enforce an ordinance passed in 1965 that gave it the

option to purchase BellSouth’s facilities. BellSouth moved for summary judgment

on its preemption claims and on Coral Springs’s counterclaim, and Coral Springs

moved for summary judgment on BellSouth’s preemption claim. The district court

upheld some sections of the ordinance, but found that others were preempted by

state or federal law, or both. The district court also granted BellSouth summary

judgment on Coral Springs’s counterclaim.

      After filing suit against Coral Springs, but before that case was resolved,

BellSouth filed a similar suit against Palm Beach, seeking a declaratory judgment

that its ordinance 16-97 was preempted. Palm Beach filed a counterclaim seeking

compensation under the terms of the ordinance. Both parties moved for summary

judgment, and the district court, employing the same analysis it had utilized in its

summary-judgment order in the Coral Springs case, upheld parts of the ordinance

while striking down others on a mixture of federal and state preemption grounds.


                                          4
In its motion for summary judgment in this case, BellSouth had argued that if a

substantial portion of the ordinance were preempted, the entire ordinance should

fall. The district court, however, found that the preempted sections were severable,

and allowed the non-preempted sections of the ordinance to stand. Because one of

the sections of the ordinance that the district court struck down was that governing

compensation for use of the rights-of-way, the district court sua sponte granted

BellSouth summary judgment on Palm Beach’s counterclaim.

      The Cities appealed, challenging the district court’s findings of preemption

and dismissal of their counterclaims. BellSouth cross-appealed, claiming that the

district court erred in upholding sections of the ordinances, or, in the alternative,

that the preempted sections were not severable, and, therefore, the ordinances

should have been struck down in their entirety.

                                  II. DISCUSSION

      “We apply the same legal standards in our preemption analysis that the

district court was required to apply in its order granting summary judgment;

therefore, we review the district court's decision de novo.” Lewis v. Brunswick

Corp., 107 F.3d 1494, 1498 (11th Cir. 1997). Because federal preemption of a

state or local law is premised on the Supremacy Clause of the United States

Constitution, see Bosarge v. United States Dep’t of Educ., 5 F.3d 1414, 1419 (11th


                                           5
Cir. 1993), and because of the longstanding principle that federal courts should

avoid reaching constitutional questions if there are other grounds upon which a

case can be decided, Santamorena v. Ga. Military Coll., 147 F.3d 1337, 1343 (11th

Cir. 1998), we first decide whether the ordinances are preempted by Florida state

law before considering whether they are federally preempted by the Act. Further,

because each City has included a severability clause in its ordinance stating it is the

City’s intention that the remainder of the ordinance remain in effect if part of the

ordinance is invalidated, we must address each relevant section of each ordinance

in turn, reserving judgment on the preemption of the ordinances as a whole until

both state and federal preemption analyses have been completed.

A. Preemption by Florida State Law

      Under Florida Statutes § 364.01(2), the Florida Public Service Commission

(“FPSC”) has jurisdiction over the regulation of telecommunications companies

within the state. Local governments are preempted from regulating

telecommunications companies except to the extent provided in § 337.401, which

is the provision of state law that historically has governed municipalities’ power to

regulate and tax telecommunications companies’ use of the public rights-of-way.

Our analysis of § 337.401 in this case is complicated somewhat by the fact that the

statute has been amended twice since these lawsuits were filed, and future


                                          6
amendments are scheduled. When these lawsuits were initiated in August 1997

and April 1998, the text of § 337.401 had stood unaltered since 1994. In May

1998, however, § 337.401 was substantially amended. See 1998 Fla. Laws ch. 98-

147. The district court duly took the 1998 amendments to § 337.401 into account

when deciding the state-law preemption question in its summary-judgment orders,

which issued in January and September of 1999. After the district court had

entered its final judgment in both cases, the Florida legislature amended § 337.401

again with the passage of the Communications Services Tax Simplification Law

(“Simplification Law”), 2000 Fla. Laws ch. 00-260. In order to understand the

changes envisioned in the Simplification Law, we must begin with an assessment

of the law that predated it.

      Under the version of § 337.401 as amended in 1998, it was clear that

municipalities were prohibited from exercising their authority to manage the public

rights-of-way in such a way as to exert regulatory control over matters that fell

under the exclusive jurisdiction of the FPSC or the Federal Communications

Commission (“FCC”). Fla. Stat. § 337.401(6) (Supp. 1998). Municipalities

could, however, require telecommunications companies to pay fees of up to “one

percent of the gross receipts on recurring local service revenues for services

provided within the corporate limits of the municipality” as consideration for the


                                          7
right to occupy the public rights-of-way. Id. at § 337.401(3). Municipalities also

had the power to enter into agreements with telecommunications companies

requiring them to pay fees based on the number of miles of cable laid in the public

rights-of-way, as well as certain other fees as compensation for the direct, physical

use of the rights-of-way and the administrative costs of regulating the rights-of-

way. Id. at § 337.401(4).

      The impetus for the Simplification Law appears to have been, in large part,

the need to bring Florida law into compliance with the Telecommunications Act of

1996. To this end, the Simplification Law mapped out a complicated schedule of

amendments to the Florida Statutes, including “transitional” amendments to §

337.401, which took effect on 1 January 2001. 2000 Fla. Laws ch. 00-260, § 50;

Fla. Stat. § 337.401 (Supp. 2001). The transitional version of § 337.401 severely

curtails municipal authority over telecommunications companies by prohibiting

municipalities from requiring telecommunications companies to enter into a

“license, franchise, or other agreement” as a condition of using the public rights-of-

way, id. at § 337.401(3)(a), and by requiring that any municipal regulations

pertaining to telecommunications companies’ use of the public rights-of-way

“must be related to the placement or maintenance of facilities in such roads or

rights-of-way, must be reasonable and nondiscriminatory, and may include only


                                          8
those matters necessary to manage the roads or rights-of-way,” id. at §

337.401(3)(b).

      The other significant feature of the transitional version of § 337.401, and the

feature that indicates why a transitional provision is necessary, is the requirement

that each municipality make an election that will affect the rate it will be able to

charge if the local communications services tax (“LCST”), authorized under § 11

of the Simplification Law, takes effect on 1 October 2001. Section

337.401(3)(c)(1) requires municipalities to choose whether they will collect certain

limited permit fees from communications providers for use of the public rights-of-

way; if a municipality chooses to charge permit fees, it must reduce the rate of its

LCST by 0.12%, but if it chooses not to charge such fees, it may increase the rate

by 0.12%. Because the LCST does not take effect until 1 October 2001, if it takes

effect at all, the transitional § 337.401 carries over, in subsections (3)(e) and (3)(f),

the language of the 1998 version’s subsections (3) and (4) pertaining to taxes and

fees that may be levied on telecommunications companies in the meantime.

Section 337.401 is scheduled to be amended again on 1 October 2001, removing

the language in subsections (3)(e) and (3)(f) entirely to reflect the implementation

of the new LCST scheme. See 2000 Fla. Laws ch. 00-260, § 51.




                                            9
       The LCST is intended to replace the patchwork system by which each

municipality had set its own formula (within the bounds of prior versions of §

337.401) for how it would tax telecommunications companies’ use of the public

rights-of-way. In § 12 of the Simplification Law, codified at Fla. Stat. § 202.20

(Supp. 2001), the Florida legislature delegated to the Revenue Estimating

Conference (“REC”) the responsibility of determining, based on the factors

prescribed in that section, what the local communications tax rate should be for

each municipality and county in the state. Recognizing the difficulties inherent in

this task, the Florida legislature structured the Simplification Law to prepare for

the contingency that the REC would not be able to establish acceptable rates for the

LCSTs: unless the Florida legislature acts before 30 June 2001, on that date section

58 of the Simplification Law will repeal the transitional amendments to § 337.401,

as well as the 1 October 2001 amendments to § 337.401 and the other sections

implementing the LCST, and § 59 will reinstate the 1998 version of § 337.401

(with only minor changes) on the same day. Presumably, if the REC is successful

in setting the rates for the LCSTs, the Florida Legislature will repeal §§ 58 and 59

before 30 June 2001 so that the October amendments, which comprise the essence

of the Simplification Law, will go into effect as scheduled.2

       2
        On 2 May 2001, the Florida Legislature passed S.B. 1878, which provides that the LCST
and the other October amendments envisioned in the Simplification Act will take effect on 1

                                             10
       That is the overall plan under the Simplification Law; however, “[w]here a

statute is amended after the entry of judgment in the trial court, but before the

decision of the appellate court, the appellate court must ‘review the judgment of

the district court in light of [the] law as it now stands, not as it stood when the

judgment below was entered.” Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515,

1519-20 (11th Cir. 1992) (quoting Diffenderfer v. Cent. Baptist Church, 404 U.S.

412, 414, 92 S.Ct. 574, 575 (1972)). Accordingly, we can only conduct our state-

law preemption analysis under the version of the statute that is currently in

effect–the transitional version of § 337.401.3

       1.      Preemption of Specific Sections of Coral Springs Ordinance 97-114
               by the Transitional Version of § 337.401

       As a preliminary matter, it is necessary to define some of the key terms as

they are used in the state law and in the ordinance. Section 337.401 addresses

municipal regulation of “telecommunications companies,” which are defined in §

364.02(12) as “every corporation, partnership, and person . . . offering two-way

telecommunications service to the public for hire,” but explicitly not including



October 2001, with certain changes and clarifications. As of the date of this opinion’s issuance,
this bill has not yet been signed into law by the Governor of Florida.
       3
        While it is possible for the post-judgment amendment of a challenged statute to render
the appeal of that judgment moot, see Fillyaw, 958 F.2d at 1519-20, in this case, a live
controversy remains as to whether the Cities’ ordinances are preempted under the Simplification
Law’s transitional amendments to § 337.401.

                                               11
“[a]n entity which provides a telecommunications facility exclusively to a

certificated telecommunications company” or “[a] private computer data network

company not offering service to the public for hire.” Ordinance 97-114, however,

refers to “telecommunications facilities,” which it defines in section 20-1(20) as

“facilit[ies] that [are] used to provide one or more telecommunications services,

any portion of which occupies public rights of way.” “Telecommunications

services” are defined in section 20-1(21) as “the transmission for hire, of

information in electronic or optical form, including, but not limited to, voice,

video, or data . . . but does not include over-the-air broadcasts to the public-at-large

from facilities licensed by the Federal Communications Commission or any

successor thereto, cable service or open video service.” Telecommunications

facilities are distinguished from “private communications systems,” which are

defined in section 20-1(15) as “facilit[ies] placed in whole or in part in the public

right of way for the provision of communications in connection with a person’s

business, but not encompassing in any respect the provision of telecommunications

services.” The ordinance uses the term “communications facility,” defined in

section 20-1(5), to refer to both telecommunications facilities and private

communications systems.




                                          12
      It is clear from these definitions that provisions of ordinance 97-114

governing “telecommunications facilities” are subject to preemption by §

337.401’s limitations on municipal power to regulate “telecommunications

companies.” Provisions of the ordinance regulating “private communications

systems,” however, do not fall within the penumbra of § 337.401. Because no

section of the ordinance is preempted by state law as it pertains to private

communications systems, our preemption analysis is conducted exclusively in

terms of its effect on telecommunications facilities, as that term is defined in the

ordinance.

      We address each relevant section of the ordinance in turn.

      Section 20-2. Franchise Required: This section requires the operators of

telecommunications facilities to obtain franchises prior to providing

telecommunications services within Coral Springs. The franchise requirements in

subsections (1) and (2) and the license requirements for telecommunications

facilities in subsection (3) are flatly preempted by § 337.401(3)(a), which prohibits

municipalities from requiring telecommunications companies to enter licenses,

franchises, or other agreements as a condition of using the public right-of-way to

provide telecommunications services.




                                          13
      Section 20-3. Compensation Required: This section requires the operators of

telecommunications facilities to pay the greater of an occupancy fee or a franchise

fee to Coral Springs as compensation for the use of the public rights-of-way. The

franchise fee, which is established in section 20-21(5)(A) as 10% of the gross

revenues generated by the operator of the telecommunications facility’s use of the

public rights-of-way, is obviously preempted by the prohibition of franchises in §

337.401(3)(a). Section 20-3 states that the occupancy fee, however, “is intended to

recover ongoing right-of way costs to the City caused by burdens users place upon

the right-of-way,” and is to be established on a per-linear-foot basis for

telecommunications facilities located in the rights-of-way. This type of a fee is

specifically authorized by state law, but § 337.401(3)(f) establishes several factors

that limit the maximum permissible amount of the fee. Thus, the occupancy fee is

not facially void under state law, but there remains a question as to whether Coral

Springs has in fact limited the rate of the occupancy tax it exacts to comply with

the state-law limits outlined in § 337.401(3)(f). Because neither party has

presented evidence of whether the actual amount of the occupancy fee Coral

Springs has charged exceeds that permitted in § 337.401(3)(f), neither party is

entitled to summary judgment on the issue of whether the occupancy tax, as

applied, is preempted by state law.


                                          14
      Section 20-4. General Conditions Upon Use of Rights-of-Way: The district

court upheld most of this section, finding it to be a “reasonable regulation of what

happens on the ground within the rights-of-way,” as it consists primarily of

straightforward provisions governing the installation, construction, relocation, and

maintenance of telecommunications facilities. We find, with the exception of two

subsections, that section 20-4 is not preempted by state law because its provisions

fall within the ambit of § 337.401(3)(b), which reserves to municipalities the right

to adopt rules or regulations governing the roads and rights-of-way, so long as they

are “related to the placement or maintenance of facilities in such roads or rights-of-

way, [are] reasonable and nondiscriminatory, and . . . include only those matters

necessary to manage the roads or rights-of-way.”

      The first problem is the second sentence in subsection (4) to section 20-4,

which reads: “Each operator must respond to requests for information regarding

its system and plans for the system as the City may from time to time issue,

including requests for information regarding its plans for construction, operation

and repair and the purposes for which the plant is being constructed, operated or

repaired.” As stated previously, under § 364.01(2), local governments are

preempted from regulating telecommunications companies except to the extent

provided in § 337.401. While Coral Springs’s reservation of the power to request


                                         15
information from operators of telecommunications facilities regarding their future

plans for use of the rights-of-way constitutes a reasonable regulation of the rights-

of-way under § 337.401(3)(b), the second sentence of subsection (4), by its terms,

“includes,” but is not limited to, requests for information concerning the rights-of-

way. Because it is not limited to matters involving the rights-of-way, this

provision exceeds the municipality’s grant of authority from the state, and is

preempted.4

       The second problem with section 20-4 is found in subsection (7), titled “No

discrimination.” Under this subsection, Coral Springs requires that

telecommunications facility operators not discriminate against “subscribers,

programmers, or residents of the City on the basis of race, color, creed, national

origin, sex, age, conditions of physical handicap, religion, ethnic background,

marital status, or sexual orientation,” and that they comply with federal, state, and

local equal employment laws. This subsection also prohibits telecommunications

facility operators from discriminating or retaliating against individuals or the City

for the exercise of any legally protected right. The requirements in subsection (7)

clearly exceed the municipality’s authority under § 337.401(3)(b) to issue


       4
        We decline to apply a limiting construction to save the valid portions of the information
request provision, because “as a federal court, we must be particularly reluctant to rewrite the
terms of a state statute.” Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir. 1993)
(emphasis omitted).

                                               16
regulations “related to the placement or maintenance of facilities in [its] roads or

rights-of-way.” This subsection includes a “savings clause,” however, which states

that these provisions are “[s]ubject to State and Federal law limitations . . . on the

City’s authority.” Thus, we need not strike down this subsection on a facial

challenge because it is effectively “self-preempting.”5 Essentially, this subsection

stands as a reservation-of-rights clause in the event that Coral Springs is granted

the authority to regulate these matters in the future.

       Section 20-5. Protection of the City and Residents: Under this section, Coral

Springs establishes standards for indemnification, insurance, performance bonds,

and a security fund that are required of telecommunications companies seeking to

use the public rights-of-way. These are reasonable regulations directly related to

the management of the rights-of-way, and are therefore authorized under §

337.401(3)(b).

       Section 20-6. Enforcement and Remedies: Subsections (1)

“Administration,” (7) “Remedies Cumulative,” (13) “Reservation of authority,”

and (15) “Ordinance not a contract,” are “housekeeping” provisions that are

necessary to the enforcement of the ordinance but do not actually regulate

telecommunications providers; these sections are not preempted by state law.

       5
        BellSouth has not claimed that Coral Springs is, in fact, enforcing the terms of this
subsection in a manner inconsistent with § 337.401.

                                                17
      Subsections (2), (3), (5), (6), (12), and (14) of section 20-6 pertain to

licenses and franchises, and are therefore preempted by § 337.401(3)(a), which

prohibits these arrangements to the extent they apply to telecommunications

companies.

      Subsection (4) “Penalties” provides for a fine to be levied against any person

who violates the ordinance. While the fine may not be used to enforce any section

of the ordinance that has been found to be preempted, the power to fine is a police

power, and therefore is reserved to the municipality under § 337.401(3)(b).

      Subsection (8) “Access to books and records” grants Coral Springs access to

all books and records in a telecommunications company’s possession pertaining to

“the construction, operation, or repair of the communications facility,” and “to the

extent that the franchise fees or license fees are based upon gross revenue or gross

receipts,” Coral Springs claims access to “all books and records related to revenues

derived from the operation of the communications facility.” Coral Springs’s power

to access documents pertaining to the construction and repair of communications

facilities is necessary to its direct regulation of the rights-of-way, and is therefore

authorized under § 337.401(3)(b); however, under state law it does not have a right

to access books and records relating to “operations,” as that term extends far

beyond those matters directly related to the rights-of-way. Further, because the


                                           18
franchise and license fee as applied to telecommunications companies is preempted

under § 337.401(3)(a), Coral Springs’s ability to request financial information for

the purpose of determining compliance with such a fee is also preempted.

       Subsection (9) “Retention of Records,” and subsection (10) “Reports,”

require the operators of telecommunications facilities to retain records and prepare

reports as requested to aid Coral Springs in determining if the facilities are in

compliance with the ordinance. These requirements are valid under §

337.401(3)(b) as they are necessary to Coral Springs’s regulation of the rights-of-

way.

       Subsection (11) “Maps” requires operators of telecommunications facilities

to “maintain accurate maps and improvement plans which show the location, size,

and a general description of all facilities installed in the rights-of-way.” This

requirement is valid under § 337.401(3)(b) as a reasonable means by which the

City can ensure that future construction in the rights-of-way does not interfere with

or damage existing communications lines and facilities.

       Section 20-7. Transitional Provisions: Subsection (1) addresses the process

by which persons operating telecommunications facilities without a franchise or

license at the time of the ordinance’s enactment should file for a franchise or

license, and subsection (2) states that persons holding franchises or licenses at the


                                          19
time of the ordinance’s enactment may continue to operate under the terms of the

franchise or license until its expiration. These subsections are preempted by §

337.401(3)(a), which prohibits municipalities from requiring telecommunications

companies to enter franchises or licenses. Subsection (3), which states that the

passage of the ordinance does not affect persons with existing leases of property in

the rights-of-way, is not preempted.

      Section 20-21. Application for a Franchise: This section sets out the process

an applicant must undergo and the criteria an applicant must meet in order to

obtain a franchise to operate a telecommunications facility in the rights-of-way in

Coral Springs, and also sets out the formula for the calculation of the franchise fee.

While Coral Springs does have the right under § 337.401(3)(a) to request some of

the information and credentials from a telecommunications company that it

requests under section 20-21, it clearly may not do so in the context of a franchise

application, and it may not charge a franchise fee. This section is preempted in its

entirety.

      2.     Preemption of Specific Sections of Palm Beach Ordinance 16-97 by
             the Transitional Version of § 337.401

      The scope of ordinance 16-97 is significantly broader than that of ordinance

97-114, as it regulates telecommunications facilities and services, private

communications systems, cable systems, and open video systems. The only

                                         20
provisions of the ordinance subject to preemption by § 337.401, however, are those

pertaining to the regulation of telecommunications facilities and services, as those

terms are defined in the ordinance,6 and so our analysis of the ordinance is limited

to its effects on those areas.

       Title I, Section 2. Franchise Required: This section requires the operators

of telecommunications facilities to obtain franchises prior to providing

telecommunications services within Palm Beach. It is preempted by §

337.401(3)(a), which explicitly prohibits municipalities from requiring

telecommunications companies to enter licenses, franchises, or other agreements as

a condition of using the public right-of-way to provide telecommunications

services.

       Title I, Section 3. Compensation Required: This section requires the

operators of telecommunications facilities to pay the following fees: (i) a fee for

applying for a franchise; (ii) additional compensation should Palm Beach’s

expenses in evaluating the franchise application exceed the initial application fee;

(iii) the costs of any experts or consultants used in evaluating the application; (iv)


       6
          Title I, section 1.23 defines “telecommunications facility” as “a facility that is used to
provide one or more telecommunications services, any portion of which occupies the public
rights of way.” Section 1.24 defines “telecommunications services” as “the transmission for
hire, of information in electronic or optical form, including, but not limited to, voice, video, or
data,” and includes “telephone service but does not include over-the-air broadcasts to the public-
at-large from facilities licensed by the Federal Communications Commission.”

                                                21
an annual occupancy fee; and (v) a franchise fee, established in title II of the

ordinance.

       All of the fees associated with a franchise would be preempted by §

337.401(3)(a), which prohibits municipalities from imposing franchise agreements

on telecommunications companies. Subsection 3.4, however, includes a savings

clause, stating that the franchise fees need not be paid if “State law . . . requires

otherwise.” Thus, while Palm Beach cannot currently charge any of the fees

associated with the franchise provisions of the ordinance, we need not strike down

this section on a facial challenge because it is “self-preempting.” This subsection

stands as a reservation-of-rights clause in the event that Palm Beach is granted the

authority to require franchises of telecommunications companies in the future.7

       The ordinance does not elaborate on the terms of the annual occupancy fee,

other than to state in subsection 3.3 that it “may be charged on a gross revenue or

per-linear-foot basis.” Subject to limitations, an occupancy fee based on gross

revenues is permitted under state law in § 337.401(3)(e), and a fee based on

distance of cable laid is permitted in § 337.401(3)(f). The occupancy fee,

therefore, is not facially preempted, but may be preempted if the actual fees

charged by Palm Beach exceed the limitations in § 337.401. Because neither party

       7
        BellSouth has not claimed that Palm Beach is, in fact, currently charging it the franchise
fee and associated costs.

                                               22
has presented evidence of the actual amount of the occupancy fee Palm Beach has

charged, neither party is entitled to summary judgment on the issue of whether the

occupancy tax, as applied, is preempted by state law.

      Title I, Section 4. General Conditions Upon Use of Rights-of-Way: This

section consists primarily of straightforward provisions governing the installation,

construction, relocation, and maintenance of telecommunications facilities. With

three exceptions, section 4 is not preempted by state law because its provisions are

reasonable rules or regulations “related to the placement or maintenance of

facilities in such roads or rights-of-way” permitted under § 337.401(3)(b).

      The first preempted provision is subsection 4.2.6, which reads:

      Every operator of a communications facility shall make available to other
      franchisees or licensees any of its conduits that is excess, so long as it is
      excess, at a reasonable, non-discriminatory rental fee. . . . The Town may
      require as a condition of issuing any right-of-way permit for underground
      conduit the installation of which requires excavation . . . that the franchisee,
      licensee, or holder of the right-of-way permit emplace conduit in excess of
      its present and reasonably foreseeable requirements for the purpose of
      accommodating other franchisees and licensees for a reasonable charge.

This requirement places a potentially substantial burden on telecommunications

companies that, while perhaps furthering Palm Beach’s policies for the

development of its technological infrastructure, goes far beyond the authority

allotted it in § 337.401(3)(b) to regulate “only those matters necessary to manage

the roads or rights-of-way.”

                                         23
      The second preempted subsection, 4.4, states:

      Every communications facility shall be subject to the right of periodic
      inspection and testing by the Town to determine compliance with the
      provisions of this Ordinance, a franchise or license agreement, or other
      applicable law. The Town shall have the right, upon request, to be notified
      and present when the communications facility is tested by the operator.
      Each operator must respond to requests for information regarding its system
      and plans for the system as the Town may from time to time issue, including
      requests for information regarding its plans for construction, operation and
      repair and the purposes for which the plant is being constructed, operated or
      repaired.

While Palm Beach does have certain rights to inspect the telecommunications

facilities and request information relating to them, under § 337.401(3)(b) it may

only do so with respect to matters concerning the physical use and management of

the rights-of-way. Because this subsection is not so limited, it is preempted.

      The third preempted subsection is 4.7, titled “No discrimination.” Under

this subsection, Palm Beach requires that telecommunications facility operators not

discriminate “on the basis of race, color, creed, national origin, sex, age, conditions

of physical handicap, religion, ethnic background, marital status, or sexual

orientation,” in both its provision of service and its employment practices. This

subsection also prohibits telecommunications facility operators from

discriminating or retaliating against individuals or the City for the exercise of any

legally protected right. Finally, the subsection requires that telecommunications

facilities operators not deny access or levy different rates on customers based on

                                          24
income. The requirements in subsection 4.7 go far beyond matters necessary to

regulate the physical rights-of-way, and therefore exceed the municipality’s

authority under § 337.401(3)(b).

      Title I, Section 5. Protection of the Town and Residents: Under this section,

Palm Beach establishes standards for indemnification, insurance, performance

bonds, and a security fund that are required of telecommunications companies

seeking to use the public rights-of-way. These are reasonable regulations directly

related to the management of the rights-of-way, and are therefore authorized under

§ 337.401(3)(b).

      Title I, Section 6. Enforcement and Remedies: Subsections 6.1 “Town

Manager responsible for administration,” 6.7 “Remedies Cumulative,” 6.13

“Reservation of Authority,” 6.14 “No waiver,” and 6.15 “Ordinance not a

contract,” are “housekeeping” provisions that are necessary to the enforcement of

the ordinance but do not actually regulate telecommunications providers; these

sections are not preempted by state law.

      Subsections 6.2, 6.3, 6.5, 6.6, and 6.12 pertain to licenses and franchises,

and are therefore preempted by § 337.401(3)(a), which prohibits these

arrangements to the extent they apply to telecommunications companies.




                                           25
      Subsection 6.4 “Penalties” provides for a fine to be levied against any person

who violates the ordinance. While the fine may not be used to enforce any section

of the ordinance that has been found to be preempted, the power to fine is a police

power, and therefore is reserved to the municipality under § 337.401(3)(b).

      Subsection 6.8 “Access to books and records” grants Palm Beach access to

all books and records in a telecommunications company’s possession “related to

the construction, operation, or repair of the communications facility,” as well as all

books and records “related to revenues derived from the operation of the

communications facility.” Palm Beach’s power to access documents pertaining to

the construction and repair of communications facilities is necessary to its direct

regulation of the rights-of-way, and is therefore authorized under § 337.401(3)(b);

however, under state law it does not have a right to access books and records

relating to operations or revenues, as those matters are not directly related to the

rights-of-way.

      Subsection 6.9 “Retention of Records,” and subsection 6.10 “Reports,”

require the operators of telecommunications facilities to retain records and prepare

reports as requested to aid Palm Beach in determining if the facilities are in

compliance with the ordinance. These requirements are valid under §




                                          26
337.401(3)(b) as they are necessary to Palm Beach’s regulation of the rights-of-way.

      Subsection 6.11 “Maps” requires operators of telecommunications facilities

to “maintain accurate maps and improvement plans which show the location, size,

and a general description of all facilities installed in the public rights-of-way.”

This requirement is valid under § 337.401(3)(b) as a reasonable means by which

the City can ensure that future construction in the rights-of-way does not interfere

with or damage existing communications lines and facilities.

      Title I, Section 7. Transitional Provisions: Subsection 7.1 addresses the

process by which persons operating telecommunications facilities without a

franchise or license at the time of the ordinance’s enactment should file for a

franchise or license, and subsection 7.2 states that persons holding franchises or

licenses at the time of the ordinance’s enactment may continue to operate under the

terms of the franchise or license until its expiration. These subsections are

preempted by § 337.401(3)(a), which prohibits municipalities from requiring

telecommunications companies to enter franchises or licenses. Subsection 7.3,

which states that the passage of the ordinance does not affect persons with existing

leases of property in the rights-of-way, is not preempted.

      Title II, Section 1. Application for a Franchise: This section sets out the

process an applicant must undergo and the criteria an applicant must meet in order


                                          27
to obtain a franchise to operate a telecommunications facility in the rights-of-way

in Palm Beach, and also sets out the formula for the calculation of the franchise

fee. While Palm Beach does have the right under § 337.401(3)(a) to request some

of the information and credentials from a communications company that it requests

under this section, it clearly may not do so in the context of a franchise application,

and it may not charge a franchise fee. This section is preempted in its entirety.

B. Preemption by § 253 of the Telecommunications Act of 1996

      Because sections of both ordinances remain that were not preempted by state

law, it is necessary for us to consider BellSouth’s claim that the ordinances are

preempted by § 253 of the Act, titled “Removal of Barriers to Entry.”8 Section 253

reads, in relevant part:

      (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.

      (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


      8
       Codified at 47 U.S.C. § 253.

                                          28
             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 [Federal
             Communications] 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.

      As has been observed by other federal courts, the language and structure of §

253 raise two difficult questions of statutory interpretation: (1) what is the

preemptive scope of § 253; and (2) who may seek enforcement of the provisions of

§ 253? See TCG Detroit v. City of Dearborn, 206 F.3d 618, 623 (6th Cir. 2000);

Cablevision of Boston, Inc. v. Public Improvement Comm’n, 184 F.3d 88, 98-99

(1st Cir. 1999). We must answer these issues of first impression before we can




                                          29
consider whether the remaining sections of the ordinances are preempted by

federal law.9

       1. Substantive Limits on State and Local Authority in § 253

       The heart of § 253 is subsection (a), which prohibits state and local

governments from passing laws or other regulations that “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). It is beyond dispute that

subsection (a) imposes a substantive limitation on the authority of state and local

governments to regulate telecommunications.

       The difficult question here pertains to the function of subsections (b) and (c).

Several federal district courts, including the district court in these cases, have

interpreted subsections (b) and (c) as imposing substantive limitations on state and

local authority in the telecommunications field. Primarily in the context of

interpreting subsection (c), these courts have held that the only regulatory authority

retained by the state and local governments is the authority to perform the

       9
         The Sixth Circuit has held that the question of whether § 253 creates a private cause of
action is a question affecting our subject-matter jurisdiction. TCG Detroit, 206 F.3d at 622. If it
were a jurisdictional matter, we would be required to address it first, before proceeding to the
issue of § 253’s preemptive scope. See Garcia-Mir v. Smith, 766 F.2d 1478, 1486 (11th Cir.
1985) (per curiam). The Supreme Court, however, has flatly stated that “[t]he question whether
a federal statute creates a claim for relief is not jurisdictional.” Northwest Airlines, Inc. v.
County of Kent, Mich., 510 U.S. 355, 365, 114 S.Ct. 855, 862 (1994). Therefore, not being
compelled to address the question of whether § 253 creates a private cause of action first, we
address these closely entwined issues in the most analytically manageable order.

                                                30
functions specifically reserved in those subsections. See Bell Atlantic-Md., Inc. v.

Prince George’s County, Md., 49 F.Supp.2d 805, 814 (D. Md. 1999) (rev’d on

other grounds, 212 F.3d 863 (4th Cir. 2000)); AT&T Communications of the

Southwest, Inc. v. City of Dallas, 8 F.Supp.2d 582, 591 (N.D. Tex. 1998); TCG

Detroit v. City of Dearborn, 977 F.Supp. 836, 841 (E.D. Mich 1997) (aff’d, 206

F.3d 618 (6th Cir. 2000)). At least one district court, however, has interpreted (b)

and (c) not as limiting state and local authority, but as defining the “safe harbors,”

that is, the exceptions to the general prohibition stated in subsection (a). See TCG

New York, Inc. v. City of White Plains, N.Y., 125 F.Supp.2d 81, 87 (S.D.N.Y.

2000).

      The confusion arises because of perceived inconsistencies within the

structure of the statute. Subsection (a) states the general limitations on state and

local government regulation of telecommunications. Subsections (b) and (c) are

structurally identical to one another: (b) begins with the phrase “Nothing in this

section shall affect . . .”, and (c) begins with the phrase “Nothing in this section

affects . . . ”; thus, (b) and (c) are couched not in terms of limitation, but of

exception to the general rule set forth in (a). Subsection (d), however, states that

the FCC shall preempt any state or local statute or regulation “that violates

subsection (a) or (b) of this section.” It would seem that if an entity could


                                           31
“violate” subsection (b), then subsection (b) must impose some sort of substantive

limitations, and because they are structured similarly, if (b) imposes separate

limitations, so must (c). Therein lies the apparent conflict. Based on four factors,

however, we find that subsection (a) contains the only substantive limitations on

state and local government regulation of telecommunications, and that subsections

(b) and (c) are “safe harbors,” functioning as affirmative defenses to preemption of

state or local exercises of authority that would otherwise violate (a).

       When interpreting a statute, “it is axiomatic that a court must begin with the

plain language of the statute.” United States v. Prather, 205 F.3d 1265, 1269 (11th

Cir. 2000). The first and most basic reason for interpreting (b) and (c) as safe

harbor provisions is that, reading (a), (b), and (c) together, it is the only

interpretation supported by the plain language of the statute; unless one omits the

opening phrase in subsections (b) and (c) completely or otherwise inflicts some

grave injustice on the rules of English grammar, it is not possible to read these

subsections as pronouncing separate limitations that a state or local government

could “violate.”10 Because they begin with the phrase “Nothing in this section



       10
          Of course, this is not to say that a state statute or regulation may not meet the criteria of
subsection (b), and a local ordinance may not meet the criteria of subsection (c). But if the
statute or ordinance in question does not meet these criteria, the state or local government has
not “violated” the subsections; rather, the particular regulation is not immune from preemption
as an exception to the general prohibition in (a).

                                                  32
shall affect . . .,” it is clear that subsections (b) and (c) are defining exceptions to

(a), and that whatever language follows that initial phrase, it derives meaning only

through its relationship to (a). Latent in the opinions of the courts that have read

subsections (b) and (c) as independent limitations on state and local authority is the

maxim that inclusion unis est exclusion alterius, that is, that by expressly reserving

certain powers to the state and local governments in (b) and (c), Congress must

have intended that only those powers be reserved. While this argument may have

some appeal at first blush, we note that if we were to read (b) and (c) as delineating

the absolute boundaries of state and local regulatory authority in the field of

telecommunications, the limitation set forth in subsection (a) would be superfluous.

Settled principles of statutory construction counsel against such a reading, see

Mears Transp. Group v. Florida, 34 F.3d 1013, 1019 (11th Cir. 1994), particularly

when it would violate the plain meaning of the statute.

       Our second reason for viewing subsection (a) as the only limitation on state

and local governments in § 253 and interpreting subsections (b) and (c) as

exceptions to (a) is that that is how the FCC has interpreted the statute.11 In 1998,

       11
         As the federal agency charged with implementing the Act, the FCC’s views on the
interpretation of § 253 warrant respect. “We need not inquire whether the degree of deference
described in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837,
844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), is in order; it is enough to observe that the well-
reasoned views of the agencies implementing a statute constitute a body of experience and
informed judgment to which courts and litigants may properly resort for guidance.” Olmstead v.
Zimring, 527 U.S. 581, 598, 119 S.Ct. 2176, 2186 (1999) (internal citations omitted).

                                              33
the FCC issued its “Suggested Guidelines for Petitions for Ruling under Section

253 of the Communications Act.” Available at http://www.fcc.gov/Bureaus/



Common_Carrier/Public_Notices/1998/fcc98295.txt. In these guidelines, the FCC

stated:

      In preparing their submissions, parties should address as appropriate all parts
      of section 253. In particular, parties should first describe whether the
      challenged requirement falls within the proscription of section 253(a); if it
      does, parties should describe whether the requirement nevertheless is
      permissible under other sections of the statute, specifically sections 253(b)
      and (c).”

Id. Thus, it is clear that (b) and (c) are exceptions to (a), rather than separate

limitations on state and local authority in addition to those in (a). Consistent with

this interpretation, if a party seeking preemption fails to make the threshold

showing that a state or local statute or ordinance violates (a) because it “may

prohibit or have the effect of prohibiting the ability of any entity to provide any

interstate or intrastate telecommunications service,” the FCC has found it

unnecessary to consider whether the statute or ordinance is “saved” by the

exceptions in (b) or (c). See, e.g., In re Missouri Municipal League, __ FCC Rec.

__ (2001); In re Minnesota, 14 FCC Rec. 21,697, 21,730 (1999); In re American

Communication Servs., Inc., 14 FCC Rec. 21,579, 21,587-88 (1999); In re Cal.

Payphone Ass’n, 12 FCC Rec. 14,191, 14,203 (1997).

                                           34
      The third factor bolstering our conclusion that Congress intended

subsections (b) and (c) to be used defensively by state and local governments

comes from the legislative history. The remarks of Senator Hollings during the

Senate debate explain how (b) and (c) were written into the Act:

      When we provided that [subsection (a)], the States necessarily came and
      said, wait a minute, that sounds good, but we have the responsibilities over
      the public safety and welfare. We have a responsibility along with you with
      respect to universal service. So what about that? How are we going to do
      our job with that overencompassing [sic] general section (a) that you have
      there. So we [added subsection (b)]. We did not want and had no idea of
      taking away that basic responsibility for protecting the public safety and
      welfare and also providing and advancing universal service. So that was
      written in at the request of the States, and they like it. The mayors came, as
      you well indicate, and they said we have our rights of way . . . and every
      mayor must control the rights of way. So we wrote [subsection (c)] in there
      . . . . We have had experience here with the mayors coming and asking us.
      And this is the response. That particular section (c) is in response to the
      request of the mayors.

141 Cong. Rec. S8174 (daily ed. June 12, 1995). Put in context, it is clear that

subsections (b) and (c) were added to the statute to preserve, rather than to limit,

state and local government authority.

      The final factor supporting our reading of § 253 is the legislative history

surrounding subsection (d). This history, for reasons that are fully addressed infra

in our discussion of whether there is a private cause of action under § 253, makes it

clear that subsection (d) was not intended to affect the interrelationship of

subsections (a), (b), and (c), but that its apparent inconsistency with the scheme set

                                          35
forth in those subsections was the result of a late amendment that was intended

only to designate the forum in which challenges to statutes or ordinances

governing particular matters were brought.

       2. Private Cause of Action

       Our touchstone in determining whether a federal statute implies a private

cause of action remains the four-part test handed down by the Supreme Court in

Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080 (1975).12 Opinions refining the Cort

analysis have indicated that the focal point of the inquiry is the second factor,

evidence of Congressional intent, and that a court should search for such evidence

primarily within the language and structure of the statute, as well as in the

legislative history. See Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513,

516 (1988); Ayres v. Gen. Motors Corp., 234 F.3d 514, 522-23 (11th Cir. 2000).

       In this case, an analysis of the statutory language creates more questions

than it answers about what causes of action Congress intended to create and who it

intended to enforce them. Subsection (d), titled “Preemption,” is the enforcement

provision, and it expressly obligates the FCC to preempt statutes that “violate”


       12
          The Cort factors are: (1) whether “the plaintiff one of the class for whose especial
benefit the statute was enacted;” (2) whether there is “any indication of legislative intent, explicit
or implicit, either to create such a remedy or to deny one;” (3) whether it is “consistent with the
underlying purposes of the legislative scheme to imply such a remedy for the plaintiff;” and (4)
whether the cause of action is “one traditionally relegated to state law, in an area basically the
concern of the States.” Id. at 78, 95 S.Ct. at 2088.

                                                 36
subsections (a) and (b). If the FCC is to enforce (a) and (b), this suggests that the

enforcement of (c) is left to private parties. But, as we have demonstrated,

subsections (b) and (c) are safe harbor provisions that cannot be violated, and

therefore cannot form the basis of a cause of action against a state or local

government. In this case, we must go beyond the plain language of the statute to

reconcile the apparent conflicts when subsections (a) through (d) are read literally.

       Fortunately, the legislative history pertaining to subsection (d) clearly

indicates Congress’s intentions when it drafted subsection (d). The Act began as

Senate Bill 652 in the 104th Congress. In its initial form, subsection (d) read:

       PREEMPTION.-If, after notice and an opportunity for public comment, the
       [Federal Communications] Commission determines that a State or local
       government has permitted or imposed any statute, regulation, or legal
       requirement that violates or is inconsistent with this section, the Commission
       shall immediately preempt the enforcement of such statute, regulation, or
       legal requirement to the extent necessary to correct such violation or
       inconsistency.13

Under this version, it was clear that preemption under this section was a purely

administrative procedure, with jurisdiction vesting in the FCC.

       Senators Feinstein and Kempthorne, the former mayors of San Francisco and

Boise, respectively, were troubled by the impact that subsection (d) would have on




       13
        At this point in the legislation’s development, the provisions that eventually became §
253 were designated as § 254.

                                               37
city governments. Senator Feinstein stated why she and Senator Kempthorne felt

FCC jurisdiction over preemption was improper:

      That means that cities will have to send delegations of city attorneys to
      Washington to go before a panel of telecommunications specialist[s] at the
      FCC, on what may be [a] very broad question of State or local government
      rights. In reality, this preemption provision is an unfunded mandate because
      it will create major new costs for cities and for States.

141 Cong. Rec. S8170 (daily ed. June 12, 1995). Senators Feinstein and

Kempthorne felt that the proper venue for resolving these disputes was the local

federal district courts. See id. at S8171. Together, they sponsored amendment No.

1270 to the bill, for the purpose of “strik[ing] the authority of the Federal

Communications Commission to preempt State or local regulations that establish

barriers to entry for interstate or intrastate telecommunications services.” 141

Cong. Rec. S8305 (daily ed. June 14, 1995). The Feinstein-Kempthorne

amendment was met with opposition from those who felt that the FCC remained

the proper body to resolve these issues. See 141 Cong. Rec. S8173 (daily ed. June

12, 1995) (remarks of Senator Pressler), S8174 (remarks of Senator Hollings).

      In response, Senator Gorton proposed amendment No. 1277, a second-

degree amendment to the Feinstein-Kempthorne amendment, which was intended

to be a compromise provision. First, Senator Gorton noted that the Feinstein-

Kempthorne amendment, and therefore his own second-degree amendment to it,


                                          38
was limited: “It does not impact the substance of the first three subsections at all,

but it does shift the forum in which a question about these three subsections is

decided.” 141 Cong. Rec. S8212 (daily ed. June 13, 1995). Senator Gorton then

explained precisely the scope and purpose of his amendment:

             I join with the two sponsors of the Feinstein amendment in agreeing
      that the rules that a city or a county imposes on how its street rights of way
      are going to be utilized, whether there are to be above-ground wires or
      underground wires, what kind of equipment ought to be used in excavations,
      what hours the excavations should take place, are a matter of primarily local
      concern and, of course, they are exempted by subsection (c) of this section.
             So my modification of the Feinstein amendment says that in the case
      of these purely local matters dealing with rights of way, there will not be a
      jurisdiction on the part of the FCC immediately to enjoin the enforcement of
      those local ordinances. But if, under section (b), a city or county makes
      quite different rules relating to universal service or the quality of
      telecommunications services–the very heart of this bill–then there should be
      a central agency at Washington, DC, which determines whether or not that
      inhibits the competition and the very goals of this bill.
             ...
             [The Gorton amendment] retains not only the right of local
      communities to deal with their rights of way, but their right to meet any
      challenge on home ground in their local district courts. The Feinstein
      amendment itself . . . would deprive the FCC of any jurisdiction over a State
      law which deliberately prohibited or frustrated the ability of any
      telecommunications entity to provide competitive service. It would simply
      take that right away from the FCC, and each such challenge would have to
      be decided in each of the various Federal district courts around the country.
             The States retain the right under subsection (d) to pass all kinds of
      legislation that deals with telecommunications providers, subject to the
      provision that they cannot impede competition. The determination of
      whether they have impeded competition, not by the way they manage trees
      or rights of way, but by the way they deal with substantive law dealing with
      telecommunications entities. That conflict should be decided in one central
      place, by the FCC. The appropriate balance is to leave purely local concerns

                                          39
       to local entities, but to make decisions on the natural concerns which are at
       the heart of this bill in one central place so they can be consistent across the
       country.

141 Cong. Rec. S8306, S8308 (daily ed. June 14, 1995). The Senate voted down

the Feinstein-Kempthorne amendment and then adopted the Gorton amendment by

a voice vote, id. at S8308, and consequently subsection (d) was amended to the

form in which it exists today.

       With the benefit of Senator Gorton’s remarks, it is clear that subsection (d),

despite its less-than-clear language, serves a single purpose–it establishes different

forums based on the subject matter of the challenged statute or ordinance.

Accordingly, we hold that a private cause of action in federal district court exists

under § 253 to seek preemption of a state or local statute, ordinance, or other

regulation only when that statute, ordinance, or regulation purports to address the

management of the public rights-of-way, thereby potentially implicating subsection

(c).14 All other challenges brought under § 253 must be addressed to the FCC.

       3.      Application of § 253 to BellSouth’s Claims

       BellSouth brought these lawsuits against the Cities, alleging that their

ordinances violated §§ 253(a) and (c). These ordinances specifically state that



       14
         “When an examination of one or more of the Cort factors unequivocally reveals
congressional intent, there is no need for us to trudge through all four of the factors.” Ayres, 234
F.3d at 524 (punctuation and citations omitted).

                                                40
their purpose is to set out the rules governing the Cities’ management of their

rights-of-way, and so the district court is the proper forum for BellSouth’s

complaints. In both cases, the district court considered whether the individual

sections of the ordinances fell within the parameters of (c), but never addressed, in

the first instance, whether the ordinances violated subsection (a). Accordingly, we

remand these cases to the district court for further proceedings to determine

whether the sections of the ordinances that are not preempted by Florida state law

violate subsection (a) because they “may prohibit or have the effect of prohibiting

the ability of any entity to provide any interstate or intrastate telecommunications

service.” If the district court finds that any of these provisions do violate (a), then

the Cities shall have an opportunity to establish that the provisions are nevertheless

not preempted because they fall within the safe harbor provided in (c).15 The

district court should reconsider the issue of severability after it has determined the

full extent to which the ordinances are preempted by state and federal law.

C.     The Cities’ Counterclaims



       15
          We are not requiring that a district court always make findings under § 253(a) before
addressing the § 253(c) question. Judicial economy may best be served by initially conducting
the § 253(c) analysis in cases in which the court can easily determine that the ordinance is not
preempted because it falls within the § 253(c) safe harbor. However, before declaring an
ordinance preempted, a court must conduct both the § 253(a) and the § 253(c) analyses. Here,
the district court erred when it declared the ordinances preempted without first determining that
BellSouth had established its prima facie case under § 253(a).

                                               41
      Both Cities appeal the district court’s grants of summary judgment in favor

of BellSouth on the issue of the Cities’ individual counterclaims. Palm Beach had

sought payment of fees under the provisions of its ordinance, and Coral Springs

had sought to enforce an ordinance that gave it the option of purchasing the

telecommunications facilities that BellSouth had built in its rights-of-way. The

district court summarily found these counterclaims to have been preempted by

state and federal law. We remand these counterclaims to the district court for

reconsideration in light of our clarification of the preemptive scope of the relevant

state and federal laws. We, however, express no opinion on the merits of these

counterclaims.

                                III. CONCLUSION

      In this appeal, the Cities challenge the district court’s finding that sections of

their ordinances were preempted by Florida state law and by § 253 of the

Telecommunications Act of 1996. BellSouth cross-appeals the district court’s

decisions not to find the ordinances preempted in their entirety. We hold that

specific subsections of the ordinances are preempted by § 337.401 of the Florida

Statutes, but that others are valid exercises of local authority under the Florida

scheme. We also hold that § 253 of the Act creates a private right of action only

for parties seeking preemption of a state or local statute, ordinance, or other


                                          42
regulation that purports to be a management of the public rights-of-way. We

further hold that the district court erred when it failed to consider whether the

ordinances violated § 253(a). For these reasons, we AFFIRM the district court’s

judgments in part, REVERSE in part, and REMAND to the district court for

further proceedings.16




       16
          Should the relevant Florida law change between the date of this opinion’s issuance and
the date on which the district court issues its order, the district court is instructed to reevaluate
the state-law preemption question in light of the new law, guided by the approach we have taken
here.

                                                 43
