                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
16   TCG Detroit v. City                   Nos. 98-2034/2035                   Pursuant to Sixth Circuit Rule 206
     of Dearborn, et al.                                               ELECTRONIC CITATION: 2000 FED App. 0081P (6th Cir.)
                                                                                   File Name: 00a0081p.06

 ______________________________________________
  CONCURRING IN PART, DISSENTING IN PART
                                                                   UNITED STATES COURT OF APPEALS
 ______________________________________________                                  FOR THE SIXTH CIRCUIT
                                                                                   _________________
  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
                                                                    Plaintiff-Appellant (98-2034), 
correct that there is an implied private right of action, then I   TCG DETROIT,

                                                                               Plaintiff (98-2035), 
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                                                  Nos. 98-2034/2035

                                                                                                       
Improvements Commission, 184 F.3d 88, 107-09 (1st Cir.                                                  >
                                                                               v.
                                                                                                       
1999), I believe there is no private right of action.

                                                                                                       
                                                                               Defendant-Appellee 
                                                                   CITY OF DEARBORN,

                                                                            (98-2034),Third-Party 
                                                                                Plaintiff-Appellant 
                                                                                                       
                                                                                         (98-2035), 
                                                                                                       
                                                                                                       
                                                                                                       
                                                                   AMERITECH MICHIGAN,

                                                                                       Third-Party 
                                                                   INCORPORATED,

                                                                               Defendant-Appellee 
                                                                                                       
                                                                                         (98-2035). 
                                                                                                      1
                                                                          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



                                                                                               1
2        TCG Detroit v. City                    Nos. 98-2034/2035         Nos. 98-2034/2035                    TCG Detroit v. City       15
         of Dearborn, et al.                                                                                    of Dearborn, et al.

    Before: GUY and BOGGS, Circuit* Judges; and HOOD,                     constitutional revisions, although the law under which the
                     District Judge.                                      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
                            COUNSEL                                       (governing Michigan Bell). It found support for this approach
                                                                          in the fact that the Michigan Attorney General, reasoning in
ARGUED: David F. Graham, SIDLEY & AUSTIN,                                 just this way, had advised the Village of Roseville in 1957
Chicago, Illinois, for TCG Detroit. William Malone,                       that its attempt to impose a franchise fee on Ameritech was
MILLER & VAN EATON, Washington, D.C., for City of                         invalid given the latter’s existing state franchise.
Dearborn. Joseph A. Fink, DICKINSON, WRIGHT, MOON,
VAN DUSEN & FREEMAN, Lansing, Michigan, for                                 The district court properly looked to Michigan law for the
Ameritech Michigan, Inc. ON BRIEF: Charles H. Polzin,                     interpretation of the retroactivity of constitutional revisions to
HILL, LEWIS, ADAMS, GOODRICH & TAIT, Birmingham,                          pre-existing contracts, and found no support for the City’s
Michigan, Roderick S. Coy, CLARK HILL, Okemos,                            position. It correctly granted summary judgment to
Michigan, Richard C. Marsh, CLARK HILL, Detroit,                          Ameritech.
Michigan, for TCG Detroit. William Malone, MILLER &
VAN EATON, Washington, D.C., Debra C. Walling,                                                            V
Dearborn, Michigan, for City of Dearborn. Joseph A. Fink,
John M. Dempsey, DICKINSON, WRIGHT, MOON, VAN                               For the foregoing reasons the judgments of the district court
DUSEN & FREEMAN, Lansing, Michigan, Michael A.                            in each case are AFFIRMED.
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.



     *
     The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
14    TCG Detroit v. City                     Nos. 98-2034/2035        Nos. 98-2034/2035                    TCG Detroit v. City       3
      of Dearborn, et al.                                                                                    of Dearborn, et al.

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,                                OPINION
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).                                BOGGS, Circuit Judge. TCG Detroit (“TCG”), a
                                                                       telecommunications provider, appeals the district court’s
  The City argues that Act 129 was abrogated by revisions to           grant of summary judgment to the City of Dearborn (“the
the Michigan Constitution, adopted in 1908, of which Article           City”) on the issue of whether the City’s requirement that
VIII § 28 provided:                                                    TCG pay the City a certain franchise fee for the privilege of
                                                                       laying fibre-optic telecommunications cable within its limits,
  No person, partnership, association or corporation                   pursuant to a city ordinance, violates the Federal
  operating a public utility shall have the right to the use of        Telecommunications Act of 1996 (“the Act”), 47 U.S.C.
  the highways, streets, alleys or other public places of any          § 253. TCG had also alleged that the City’s requirement
  city, village or township for wires, poles, pipes, tracks or         constituted a violation of 42 U.S.C. § 1983. The district court
  conduits, without the consent of the duly constituted                had earlier dismissed without prejudice TCG’s state claim,
  authorities of such city, village or township; nor to                which had alleged a violation of the Michigan
  transact a local business therein without first obtaining a          Telecommunications Act of 1995, invoking 28 U.S.C.
  franchise therefor from such city, village or township.              § 1367(c). It adhered to that ruling, refusing to reinstate that
  The right of all cities, villages and townships to the               claim “based on a concern of jury confusion over the differing
  reasonable control of their streets, alleys and public               standards applicable to the federal and state claims.” TCG
  places is hereby reserved to such cities, villages and               Detroit v. City of Dearborn, 977 F. Supp. 836, 841 (E.D.
  townships.                                                           Mich. 1997).
This provision was retained in all substantial respects by the            In the course of its dispute with TCG, the City also
Michigan Constitution of 1963, Art. VII § 29. Ameritech                demanded a franchise fee from an existing provider,
contends that the revisions of 1908 do not apply retroactively.        Ameritech Michigan (“Ameritech”), resulting in a suit which
                                                                       has been consolidated with TCG’s case. The City claimed
   There have been similar lawsuits involving utility                  that the Act gave it authority to charge such a fee. The district
companies organized under Michigan Public Act 264, the                 court granted summary judgment to Ameritech on the grounds
counterpart for utilities to Public Act 129 governing                  that the Michigan law under which Ameritech was
telecommunications companies. In such suits, the Michigan              incorporated, and its original franchise granted, prohibits the
Supreme Court has taken a position similar to what is urged            local imposition of franchise fees on providers who had
by Ameritech in this case, and the district court applied the          already been granted a franchise by the State of Michigan.
Michigan Supreme Court’s reasoning here. See City of                   The City appeals.
Lansing v. Michigan Power Co., 183 Mich. 400, 150 N.W.
250 (1914); Village of Constantine v. Michigan Gas & Elec.                                            I
Co., 296 Mich. 719, 296 N.W. 847 (1941). Both cases held
that pre-existing franchise rights were not affected by the              In 1994, TCG made an agreement with Detroit Edison to
                                                                       lay fibre-optic telecommunications cable in the latter’s
4    TCG Detroit v. City                  Nos. 98-2034/2035      Nos. 98-2034/2035                   TCG Detroit v. City     13
     of Dearborn, et al.                                                                              of Dearborn, et al.

existing electrical conduit rights-of-way. The cable was to be   also correctly rejected TCG’s argument that the fee
owned by Detroit Edison and in part leased back to TCG for       constituted an impermissible barrier to entry in violation of
its use in providing telecommunications services. TCG had        §253(a).
laid almost eight miles of a proposed total of twenty-seven
miles of cable when the City, advised of the agreement by         Therefore, the district court’s dismissal of TCG’s suit on
Detroit Edison, objected and demanded a franchise fee before     motion by the City for summary judgment was proper.
work could proceed further.
                                                                                               IV
  TCG and the City began negotiations (during which the
City passed an ordinance authorizing it to collect the fees in     In its original incarnation as Michigan State Telephone
question) and, by June 29, 1995, had reached a tentative         Company, Ameritech had sought and been granted a franchise
agreement, memorialized in the City’s proposal of that date to   from the state upon its incorporation, in 1904, pursuant to
TCG. This provided for the payment by TCG of 4% of its           Michigan Public Act 129 (“Act 129”), a law passed in 1883
gross revenues, on top of a $50,000 one-time fee and up to       to provide for the organization of telephone service
$2,500 in reimbursement of the City’s administrative costs.      companies. The provision of Act 129 relevant to the case at
TCG’s regional counsel accepted this proposal in principle,      bar reads as follows:
suggesting amendments (among them, a provision that any
agreement would be modified to reflect future changes in           Every such corporation shall have power to construct and
federal and state laws), in a letter dated September 22, 1995.     maintain lines of wire or other material, for use in the
                                                                   transmission of telephonic messages along, over, across,
   Meanwhile, legislation that would become the Act was            or under any public places, streets and highways, and
introduced in Congress in May 1995. The Act was passed in          across or under any of the waters in this state, with all
1996, to become effective in February 1998. Believing that         necessary erections and fixtures therefor: Provided, That
this legislation foreclosed the City’s right to require the        the same shall not injuriously interfere with other public
franchise fee, TCG backed away from the agreement as it had        uses of the said places, streets, and highways, and the
stood, and in a series of letters to the City between January      navigation of said waters; to construct, provide, and
and March 1996 attempted to obtain a permit without                furnish instruments, devices, and facilities for use in the
payment of the fees previously discussed. Continuing talks         transmission of such messages, and to construct,
with the City failed to resolve the issue, whereupon TCG           maintain, and operate telephone exchanges and stations,
brought suit in September 1996.                                    and generally to conduct and carry on the business of
                                                                   providing and supervising communication by telephone,
  In addition to alleging that the City was violating the Act,     and also the business of furnishing messenger service in
TCG alleged discrimination against it and in favor of              cities and towns.
Ameritech, which was not being required to pay any franchise
fee. Thereupon, the City demanded a fee of Ameritech, which      Public Act 129, 1883.
refused, prompting the City to implead it as a third-party
defendant.                                                         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
12       TCG Detroit v. City                      Nos. 98-2034/2035          Nos. 98-2034/2035                    TCG Detroit v. City         5
         of Dearborn, et al.                                                                                       of Dearborn, et al.

the same, and that only the totality of the circumstances could                 On cross motions for summary judgment by all parties, the
illuminate whether a fee is “fair and reasonable.”                           City prevailed against TCG, the district court ruling that a fair
                                                                             and reasonable franchise fee was permitted by the Act and
  The court found the fee in question to be both fair and                    that TCG’s near-agreement on the terms demanded showed
reasonable, considering the amount of use contemplated                       that TCG itself had considered the City’s proposed fees
(twenty-seven miles), the amount that other providers would                  “reasonable.” Ameritech, however, convinced the district
be willing to pay (three others had agreed to similar fees), and             court that state law, under which Ameritech’s predecessor,
the fact that TCG had agreed in earlier negotiations to a fee3               Michigan State Telephone Company, had first negotiated its
almost identical to what it was now challenging as unfair.                   franchise in 1904, precluded any local authority from altering
The court’s examination of this question was thorough and its                the franchise’s terms. The City had argued, unsuccessfully,
reasoning sound.                                                             that the 1908 amendments to Michigan’s constitution,
                                                                             expanding municipal authority over rights-of-way, could be
   TCG also complains that since the City did not charge                     applied to a pre-existing chartered company.
Ameritech a franchise fee, doing so in TCG’s case is
discriminatory, a violation of both the Act, 47 U.S.C.                          The district court noted that the case is one of first
§ 253(c), and, in consequence, of 42 U.S.C. § 1983. But, as                  impression in this Circuit, this court never having had
the district court pointed out, the City did seek to charge such             occasion to consider the implications of the Act’s “fair and
a fee, resulting in the third-party suit against Ameritech also              reasonable compensation” provision. Since the district
before this court.                                                           court’s ruling, this court has had occasion to consider a case
                                                                             in which the Act is, at least in part, implicated. See Michigan
   The fact that Ameritech prevailed before the district court               Bell Tel. Co. v. Climax Tel. Co., 186 F.3d 726 (6th Cir. 1999),
in its contention that state law prohibits the City from                     amended, No. 98-1315, 2000 WL 29984, 2000 Fed. App.
subjecting it to the franchise fee charged others does not mean              0025A (6th Cir. Jan. 18, 2000). However, the instant case
that the City is thereby discriminating in Ameritech’s favor.                requires us for the first time to construe § 253 of the Act. We
Possibly, if Ameritech thus enjoys a state-mandated freedom                  hold that the district court correctly construed § 253, and did
from such fees, its competitive position is strengthened, and                not err in its other rulings.
it might be able, in theory, to undercut its competition; if it
did so, the result might be a barrier to entry by newcomers.                                                II
But this would be a different issue, and TCG has not alleged
that this has occurred.                                                        The immediately relevant subsections of the pertinent
                                                                             section of the Act are:
    Since the district court found the fee to be fair and
reasonable, and its imposition to be neither discriminatory in                 § 253. Removal of barriers to entry
intent nor, in and of itself, anti-competitive in effect, the court
                                                                               (a) In general
                                                                                 No State or local statute or regulation, or other State or
     3                                                                         local legal requirement, may prohibit or have the effect
     The amounts in question are the same; various subordinate
provisions remaining to be settled when negotiations broke down do not         of prohibiting the ability of any entity to provide any
appear to have been made part of the City’s final position, the details of     interstate or intrastate telecommunications service.
which are, moreover, unclear.
6      TCG Detroit v. City                    Nos. 98-2034/2035      Nos. 98-2034/2035                    TCG Detroit v. City       11
       of Dearborn, et al.                                                                                 of Dearborn, et al.

    (b) State regulatory authority                                      Accordingly, we hold that the Michigan district court
       Nothing in this section shall affect the ability of a State   correctly decided in TCG that § 253(c) of the Act authorizes
    to impose, on a competitively neutral basis and consistent       a private right of action in federal court for
    with section 254 of this section, requirements necessary         telecommunications providers aggrieved by a municipality’s
    to preserve and advance universal service, protect the           allegedly discriminatory or allegedly unfair and unreasonable
    public safety and welfare, ensure the continued quality of       rates.
    telecommunications services, and safeguard the rights of
    consumers.                                                                                      III

    (c) State and local government authority                            TCG attempts to characterize the City’s ordinance as a
       Nothing in this section affects the authority of a State      prohibition, itself prohibited by 47 U.S.C. § 253(a).
    or local government to manage the public rights-of-way           Appellant’s Brief at 18-19. TCG then describes the fee
    or to require fair and reasonable compensation from              required to obtain the franchise as an afterthought, which
    telecommunications providers, on a competitively neutral         conditionally lifts that prohibited prohibition. This is
    and nondiscriminatory basis, for use of public rights-of-        sophistry. The provider must apply for a franchise; the City
    way on a nondiscriminatory basis, if the compensation            assesses a franchise fee; no fee paid, no franchise given. That
    required is publicly disclosed by such government.               cannot “be described as a prohibition [within the meaning of
                                                                     section 253(a)].” Id. at 19 (quoting AT&T Communications
    (d) Preemption                                                   of the Southwest, Inc. v. City of Austin, 975 F. Supp. 928, 939
      If, after notice and an opportunity for public comment,        (W.D. Tex 1997)). The issue here is not, as in AT&T
    the Commission determines that a State or local                  Communications, a municipality’s withholding of consent to
    government has permitted or imposed any statute,                 a franchise application, something the City never
    regulation, or legal requirement that violates subsection        contemplated vis à vis TCG, but rather TCG’s challenge to a
    (a) or (b) of this section, the Commission shall preempt         fee that the Act would appear, on its face, explicitly to permit,
    the enforcement of such statute, regulation, or legal            if “fair and reasonable” and “competitively neutral and non-
    requirement to the extent necessary to correct such              discriminatory.”
    violation or inconsistency.
                                                                        The question then is whether the fee assessed by the City is
47 U.S.C. § 253(a)-(d).                                              “fair and reasonable compensation,” within the meaning of
                                                                     the Act. In concluding that it is, the district court first
   Before considering the issues presented in this case,             examined, and rejected, TCG’s contention that this phrase,
however, this court must be assured that it has jurisdiction.        which is not defined in the Act, should be given the same
The district court raised the question of whether TCG has            meaning as the words “just and reasonable” in the Pole
standing to sue under the Act, and held that § 253 implies a         Attachment Act, 47 U.S.C. § 224 (which applies to cable
private right of action for those claiming barrier-to-entry          television providers’ use of utilities’ poles). The latter defines
injury. See TCG Detroit v. City of Dearborn, 977 F. Supp. at         “just and reasonable” in terms of recovery of additional costs
839. But other district courts have held otherwise. See, e.g.,       borne by the utility in providing pole attachments. The court
GST Tucson Lightwave, Inc. v. City of Tucson, 950 F. Supp.           noted that Congress did not choose to insert a comparable
968, 970-71 (D. Ariz. 1996) (holding no private right of             definition in the Act, that “costs” and “compensation” are not
10   TCG Detroit v. City                   Nos. 98-2034/2035       Nos. 98-2034/2035                            TCG Detroit v. City             7
     of Dearborn, et al.                                                                                         of Dearborn, et al.

   To be sure, since Cort v. Ash, the Supreme Court has            action, express or implied, for § 253 injuries); accord AT&T
become more restrained in its willingness to find an implied       Communications    v. Austin, Tex., 975 F. Supp. 928, 936 (W.D.
private right of action. See Touche Ross & Co. v. Redington,       Tex. 1997).1
442 U.S. 560, 578 (1979) (adopting a “stricter standard” of
“congressional intent”). But a majority of the Court has not         Although the City does not contest as error the district
gone so far as to hold that Cort v. Ash has been “effectively      court’s holding that § 253 confers an implied private right of
overruled” (see Thompson v. Thompson, 484 U.S. 174, 188            action, it is incumbent on us to address this issue, since the
(1988) (Scalia, J., concurring in the judgment)). Rather, the      question of TCG’s standing implicates the United States
Court has required some affirmative evidence of                    Constitution’s Article III case-or-controversy requirement,
congressional intent, in “the language and focus of the statute,   which must be satisfied for a federal court to hear the case.
its legislative history, and its purpose.” Touche Ross, 442        See Juidice v. Vail, 430 U.S. 327, 331-32 (1977) (“Although
U.S. at 575-76. In this case, in addition to the fact that such    raised by neither of the parties, we are first required to
a right plainly serves the purpose of the legislative scheme,      examine the standing of appellees, as a matter of the case-or-
the language of the Act seems clearly to suggest that Congress     controversy requirement associated with Article III . . . .”). If
intended that a private right of action be available. Section      this requirement of Article III is not satisfied, jurisdiction is
255, mandating access by persons with disabilities, expressly      lacking. See In re GF Corp., Nos. 92-3583, 92-3585, 1993
provides that there shall be no private right of action to         WL 239062, at *2 (6th Cir. June 30, 1993) (unpublished
enforce that section’s requirements. See 47 U.S.C. § 255(f).       opinion). Where jurisdiction is lacking, the court must on    its
The resulting implication is that the neighboring section          own motion dismiss the case. Fed. R. Civ. P. 12(h)(3).2
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.            1
                                                                         In AT&T Communications v. Austin, the Texas district court
                                                                   nevertheless granted AT&T an injunction against the enforcement of an
   We recognize that Judge Noonan, concurring in the result        Austin ordinance that, the company argued, violated both § 253(a) and (c)
in Cablevision, was convinced, in large part by §§ 252(e)(6),      of the Act by requiring municipal consent to its providing
258(b), and 274(e), that the Act is always explicit when it        telecommunications services. In doing so, the court found its jurisdiction
contemplates a private right of action. But these subsections      in the Supremacy Clause, ruling that the Act preempted local regulatory
                                                                   authority, and that AT&T could challenge such authority on those
refer to legal remedies in the alternative, over and above         grounds; although it agreed with the Arizona court in GST Tucson
procedures or remedies available from the Commission or            Lightwave, and AT&T also conceded, that the Act confers no private right
from state commissions. The subsection of § 253 authorizing        of action, the Texas district court also found neither exclusive nor primary
Commission action, § 253(d), pointedly omits reference to          jurisdiction in the FCC. 975 F. Supp. at 937-39. The same approach was
violations of § 253(c). Thus, we believe it is incorrect to say    followed in another Texas case. See AT&T Communications, Inc. v. City
that reading a private right of action into § 253(c) “runs         of Dallas, 8 F. Supp. 2d 582 (1998). We are not, however, persuaded that
                                                                   such a jurisdictional analysis provides a proper basis for proceeding.
counter to the statutory scheme of § 253 itself.” 184 F.3d at
108. A violation of § 253(c) might well not involve violating          2
                                                                         The First Circuit has said that a court can avoid this issue, in the
§ 253(a); unfair or unreasonable fees need not rise to the level   context of a § 253 claim, but its discussion first confuses whether a
of erecting a barrier to entry, while only the latter violation    plaintiff has standing to sue, i.e. whether a private right of action exists (a
authorizes the Commission to act pursuant to § 253(d).             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
8      TCG Detroit v. City                         Nos. 98-2034/2035           Nos. 98-2034/2035                   TCG Detroit v. City         9
       of Dearborn, et al.                                                                                          of Dearborn, et al.

  In this case, as in GST Tucson, a telecommunications                           Section 257, “Market entry barriers proceeding,” is devoted
provider claims that a municipality has violated § 253(c), and                 entirely to mandating FCC identification and review of “entry
damaged the provider, by setting rates for different providers                 barriers for entrepreneurs and other small businesses in the
that are competitively biased and discriminatory, and by                       provision and ownership of telecommunications services and
charging it unfair and unreasonable rates. As the court in GST                 information services . . . .” 47 U.S.C. § 257(a). This would
Tucson noted, there is no express authority in this section for                seem on its face to strengthen the view that the FCC has
a private right of action. See 950 F. Supp. at 969. The                        exclusive jurisdiction over violations of § 253(a). As the
question is then whether such a right is implied. The                          Arizona district court commented, “[e]nforcement of § 253 is
disagreement between that court, and the Michigan district                     provided for in § 253(d) and § 257, further indicating an
court in TCG, concerns the meaning of § 253's language as                      absence of congressional intent that a private right of action
well as the statute’s broader structure.                                       be implied.” GST Tucson, 950 F. Supp. at 970.
   The subsections of § 253 quoted above raise several                           However, the district court whose judgment we review here
questions. Does (d) provide for exclusive jurisdiction of the                  quotes to telling effect the Senate debate on § 253(d), as that
FCC in violations of (a) and (b), or is a private right of action              subsection is intended to relate to the safe harbor of
also implied? Does (d)’s omission of (c) mean that a private                   subsection (c). During the debate, Senator Gorton explained:
right of action, instead of FCC jurisdiction, applies to
violations of (c)? Or is (c) omitted from (d) because it merely                  There is no preemption . . . for subsection (c) which is
provides a safe harbor for municipalities, such that, to be                      entitled, “Local Government Authority,” and which is the
actionable, a violation of (c) must be a violation of (a), subject               subsection which preserves to local governments control
(perhaps solely) to FCC enforcement under (d)?                                   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
Cablevision of Boston, Inc. v. Public Improvement Comm’n, 184 F.3d 88,
                                                                                 Communications Commission not be able to preempt
100 n.9 (1st Cir. 1999). Article III standing may indeed be lacking where        such actions.
statutory standing exists, and the First Circuit correctly cites Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), for this proposition.      977 F. Supp. at 840 (quoting 141 Cong. Rec. S 8213 (June 13,
It is an entirely different thing, however, to assert that a plaintiff has     1995) (emphasis added by the district court)).
Article III standing, and that this provides jurisdiction, where a statute
deprives that very plaintiff of standing to sue. Lujan cannot be turned on       Moreover, we are persuaded by the district court’s careful
its head in this manner. In any event, the Supreme Court held in Merrill       discussion, which need not be duplicated here, of the Supreme
Dow Pharmaceuticals, Inc. v. Thompson that “when Congress has
determined that there should be no private, federal cause of action . . . [a   Court’s four-factor test in Cort v. Ash, 422 U.S. 68, 78
claimed] violation does not state a claim ‘arising under the Constitution,     (1975), which provides guidance in determining whether a
laws, or treaties of the United States.’” 478 U.S. 804, 817 (1986). See        Congressional statute creates an implied private right of
also Erwin Chemerinsky, Federal Jurisdiction 285 (3d ed. 1999) (“A             action. See TCG, 977 F. Supp. at 839-41. This is a test to
great many federal laws do not create private causes of action . . . . After   which the Arizona court referred in GST Tucson, but which it
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      failed to apply. See 950 F. Supp. at 970.
Cir. 1985) (affirming dismissal, for lack of subject matter jurisdiction, of
a complaint resting on a non-existent private right of action).
