Carriers' Case Against Des Moines Kicked Back to District Court for Fact Finding
The 8th U.S. Circuit Court of Appeals remanded part of carriers’ case against Des Moines over right-of-way charges to a district court for “fact finding,” said an opinion Tuesday. “The record in this case is replete with dense reports and…
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conflicting expert opinions,” wrote Judge Jane Kelly, also for David Stras and William Benton. Only a district court decision that Des Moines exceeded authority to impose fees was remanded for additional fact finding. “Much turns on which experts to believe,” Kelly wrote. Qwest, Windstream and McLeodUSA challenged a fee schedule that charges carriers based on the total feet of wire or cable along city ROW and increases the fee by .02 cent a foot per year until the total reaches a 12 cents per foot target price. The companies argued federal law pre-empted the fee schedule, but the 8th Circuit upheld a district court’s ruling that the city’s rule wasn’t pre-empted. The district court’s ruling Des Moines didn’t exceed authority to impose fees was remanded because it’s not clear if the fees were based on the city’s actual costs, the opinion said. “Turning now to whether construction costs are 'management costs' that the City can properly charge the Carriers, our answer is maybe,” said the 8th Circuit. “We remand the case to the district court to make additional findings of fact.”