at ¶ 3. Thus, Plaintiffs admit to using Town property, in some form or another, to provide telecommunications services.
Plaintiffs, however, argue that since their fibers do not directly physically occupy the rights-of-way, they are not "using" the Town's rights-of-way to provide services to their customers within the Town. This argument is untenable. Regardless of whether they use the rights-of-way directly (by laying wires in the rights-of-way) or indirectly (by either laying wires in a conduit owned by another provider or by delivering services over facilities that another provider has installed in the rights-of-way), they are still using the rights-of-way.
Accordingly, the Court grants the Town's motion for summary judgment on its counterclaim alleging a violation of Local Law No. 13.*fn16
2. Section 27
Section 27 definitively provides, in relevant part, "[a]ny [telegraph or telephone] corporation is authorized . . . to construct and lay lines of electrical conductors under ground in any . . . town within the limits of this state . . . provided that such [telegraph or telephone] corporation shall, before laying any such line in any . . . town . . . first obtain from the common council of cities, or other body having like jurisdiction therein, the trustees of villages, or the town superintendents of towns, permission to use the streets within such city, village or town. . . ." N.Y. Transp. Corp. Law § 27 (emphasis added).
Defendant alleges that Plaintiffs laid lines within the Town's streets in order to provide telecommunications services to customers, without its "permission," in violation of Section 27. In opposition, Plaintiffs contend that (1) Section 27 does not create a right of action by the Town and (2) they have not "laid" lines within the Town's rights-of-way without "permission."*fn17 The Court will address each of these arguments in turn.
On its face, the language of Section 27 does not expressly provide a remedy for a violation thereof. See N.Y. Transp. Corp. Law § 27. Thus, in order to decide whether the statute impliedly creates a private right of action,*fn18 New York considers the following factors: (1) is the plaintiff part of the class for whose benefit the statute was enacted; (2) is there any indication of legislative intent either to create or deny such a remedy; and (3) is such a remedy consistent with the underlying purposes of the legislative scheme.*fn19 See Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 325 (1983); Cort v. Ash, 422 U.S. 66, 78 (1975).
Although the legislative history of Section 27 and the statute itself are silent as to whether the statute creates a right of action for a municipality, it is clear that Section 27 intends to bestow some authority on the Town with respect to the use of its streets. Section 27 provides that the Town's permission is a prerequisite to the rights bestowed on a corporation. Clearly, this provision was intended for the Town's benefit, and it would be meaningless if there were no mechanism by which the Town could enforce it. Thus, the Court finds that Section 27 does create a right of action for the Town where a telecommunications provider proceeds without the "permission" required by the statute.
The Court must now determine whether Plaintiffs have proceeded to "lay lines" in the Town, without the Town's "permission," in violation of Section 27. The cases defining the term "permission," as used in the statute, are far from uniform. However, Section 27 clearly requires some form of "permission" and, thus, as Plaintiffs have conceded that they did not obtain such permission, if they have installed lines underground in the Town, they are in violation of Section 27.*fn20
Although the Town contends that Plaintiff TC Systems has installed telecommunications facilities in the Town's rights-of-way, Plaintiffs deny that this is the case. Plaintiffs contend that although "some of TCG's facilities have been constructed within the Town," the construction was not within the Town's rights-of-way. See Plaintiffs' Response Statement of Material Facts at ¶ 53. The undisputed facts establish that (1) TCG had plans to construct its telecommunications facilities in the Town of Colonie as early as 1997, see Affidavit of Anthony Giovannucci, sworn to October 29, 2002 ("Giovannucci Aff."), at ¶ 10, (2) in the beginning of 2001, Key Bank decided to purchase service from TCG which would require TCG to utilize the Town's rights-of-way, see Giovannuci Tr. at 108-110, (3) TCG began construction in the Town around this time, although the parties dispute the nature of the construction, see id. at 110-12; Plaintiffs' Response Statement of Material Facts at ¶ 53, (4) TC Systems owns a fiber network within the Town's rights-of-way which is placed in conduit (owned by Verizon), which is located in the public rights-of-way, see Confidential Portion of Plaintiffs' Response Statement of Material Facts at 18-20, and (5) TC Systems is currently providing telephone service to at least one customer in the Town. See TC Systems' Response and Objections to Defendant's Request for Admissions at ¶ 19.
Notwithstanding these facts, however, there is a missing link — how did the fiber, which TC Systems owns and uses, get into the conduit? The facts surrounding whether TC Systems installed it there are disputed and, therefore, the Court cannot say, as a matter of law, that Plaintiffs have violated Section 27.
Accordingly, the Court denies Plaintiffs' and Defendant's motion for summary judgment with respect to this counterclaim.
After carefully considering the entire file in this matter, the parties' submissions and oral arguments, and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Plaintiffs' Third, Fourth and Fifth causes of action are DISMISSED as moot; and the Court further
ORDERS that Sections 173-6(C)(2), 173-7(A), 173-7(A)(1), 173-7(A)(5), 173-7(A)(6), and 173-10(B) of Local Law No. 13 are invalidated; and the Court further
ORDERS that Sections C(2), D(2), D(3)(c), D(4)(b), H, I(8) and I(14)(c) of the Draft Franchise are invalidated; and the Court further
ORDERS that the 5% gross revenue fee provisions in § 173-13 of Local Law No. 13 and the compensation provisions in Section F of the Draft Franchise are invalidated; and the Court further
ORDERS that all provisions intended to ensure payment of these fees, including but not limited to § 173-11(B)(2) of Local Law No. 13, are invalid as moot; and the Court further
ORDERS that Defendant's motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED with respect to Plaintiffs' claim that Local Law No. 13 and the Draft Franchise violate Section 27, to the extent they are permissible under federal law; and the Court further
ORDERS that Defendant's motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED with respect to Plaintiffs' claim that Local Law No. 13 and the Draft Franchise violate New York Public Service Law § 94; and the Court further
ORDERS that Defendant's motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED with respect to Plaintiffs' tenth cause of action, asserting that the Town violated their Fourteenth Amendment rights; and the Court further
ORDERS that Defendant's motion for summary judgment is GRANTED, and Plaintiffs' cross-motion for summary judgment is DENIED with respect to the Town's counterclaim that Plaintiffs have violated Local Law No. 13; and the Court further
ORDERS that Defendant's motion for summary judgment and Plaintiffs' cross-motion for summary judgment are DENIED with respect to the Town's counterclaim that Plaintiffs have violated Section 27; and the Court further
ORDERS that Plaintiffs' counsel is to initiate a telephone conference*fn21 with the Court and opposing counsel at 9:00 AM on May 29, 2003 to discuss how to proceed with the only remaining claim in this action — the Town's counterclaim that Plaintiffs have violated Section 27.
IT IS SO ORDERED.