United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
before the Court is the Plaintiffs' Joint Motion for
Summary Judgment. (ECF No. 59.) For the reasons discussed
below, the motion is GRANTED and Defendants
are ENJOINED from enforcement of Article 4
of West Virginia Code Chapter 31G (“Article 4”).
2017, West Virginia passed House Bill 3093. Article 4 of
House Bill 3093, entitled “Make-Ready Pole Access,
” purports to supplant the federal regulations by
establishing a different “make-ready” process for
utility poles in West Virginia. W.Va. Code § 31G-4
(2017). Plaintiff Frontier West Virginia, Inc. filed a
complaint for declaratory and injunctive relief in this Court
on July 7, 2017. (ECF No. 1.) West Virginia Cable
Telecommunications Association Inc. filed a similar suit in
this Court under Civil Action No. 2:17-cv-03609, ECF No. 1.
These two cases were consolidated under 2:17-cv-03560 on
October 12, 2017. (ECF No. 43.) Plaintiffs maintain that
because the state of West Virginia failed to “satisfy
statutory conditions for reverse preemption of federal
authority, 47 U.S.C. § 224 precludes West Virginia from
regulating the rates, terms, and conditions of the pole
attachments under the FCC's jurisdiction” and
Article 4 is therefore preempted under the Supremacy Clause
of the United States Constitution. (See ECF No. 1 at
filed this joint motion for summary judgment and memorandum
in support of their motion on April 2, 2018. (See
ECF No. 60.) Defendant Commissioners, as the only surviving
defendants following a hearing that resolved various motions
including motions to dismiss, (See ECF No. 54 &
55), responded to the motion for summary judgment on April
17, 2018, (see ECF No. 62), and Plaintiffs filed
their reply memorandum on April 25, 2018, (ECF No. 63.) The
motion is fully briefed and ripe for adjudication.
STANDARD OF REVIEW
judgment is proper where the pleadings, depositions, and
affidavits in the record show that there is “no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). If there exist factual issues that
properly can be resolved only by a trier of fact because they
may reasonably be determined in favor of either party,
summary judgment is inappropriate. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). See also
Pulliam Inv. Co., Inc. v. Cameo Props., 810 F.2d 1282,
1286 (4th Cir. 1987). The moving party bears the burden of
showing that there is no genuine issue of material fact and
that he is entitled to judgment as a matter of law.
Celotex Corp., 477 U.S. at 322-23. Summary judgment
is appropriate when the nonmoving party has the burden of
proof on an essential element of her case and does not make,
after adequate time for discovery, a showing sufficient to
establish that element. Id. The nonmoving party may
not avoid summary judgment “by submitting an affidavit
that conflicts with earlier deposition testimony.”
Alba v. Merrill Lynch & Co., 198 Fed. App'x
288, 300 (4th Cir. 2006) (citing Barwick v. Celotex
Corp., 736 F.2d 946, 960 (4th Cir. 1984)). When
determining whether there is an issue for trial, the Court
must view all evidence in the light most favorable to the
nonmoving party. Mellen v. Brunting, 327 F.3d 355,
363 (4th Cir. 2003). The nonmoving party may not rest on the
pleadings alone and must show that specific material facts
exist by offering more than a mere “scintilla of
evidence” in support of his position.
Anderson, 477 U.S. at 252.
do not dispute that Article 4 conflicts with the Federal
Communication Commission's regulatory regime governing
pole attachments, nor do they dispute that Article 4 is
preempted because of the conflict under the Supremacy Clause
of the United States Constitution. (See ECF No.
2-6.) As a result of this agreement on the merits between the
parties, there is no issue for this Court to determine.
Therefore, the Court must enjoin the enforcement of Article
4.Subsequent developments or actions taken by the West
Virginia Legislature or other appropriate entities could lead
to the dissolution of the injunction, however further action
by this Court will have to wait until such developments have
reasons stated above, the Court GRANTS
Plaintiffs' Joint Motion for Summary Judgement, (ECF No.
59), DECLARES that Article 4 of West
Virginia Code Chapter 31G is preempted by federal law as
applied to privately owned utility poles, and Defendants are
PERMANENTLY ENJOINED from enforcing,
applying or otherwise giving effect to Article 4 as applied
to privately owned utility poles.
IS SO ORDERED.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of ...