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      "TIME WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP, Plaintiff v. TOWN OF LANDIS, NORTH CAROLINA, Defendant"
    ],
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      {
        "text": "HUNTER, JR., Robert N., Judge.\nTime Warner Entertainment Advance/Newhouse Partnership (\u201cTWEAN\u201d) appeals a trial court order dismissing its case for lack of subject matter jurisdiction. Upon review, we reverse and remand.\nI. Facts & Procedural History\nIn 1979, Vision Cable Communications, Inc. (\u201cVision\u201d) began providing cable television services in the Town of Landis (\u201cLandis\u201d). On 16 June 1984, Vision and Landis entered into a written pole attachment agreement (the \u201c1984 Agreement\u201d). Under the terms of the 1984 Agreement, Landis granted Vision a license to attach transmission cables to Landis\u2019 utility poles for $3 per pole per year. Landis charged an additional $1 per year for each metered power supply attachment. The 1984 Agreement required semi-annual payments and was for a period of \u201cnot less than one (1) year.\u201d After one year, either party could terminate the Agreement by giving six months\u2019 written notice.\nTWEAN subsequently acquired Vision and became successor-in-interest to the 1984 Agreement. TWEAN delivers cable television and broadband services to businesses and residents in Landis. Nothing in the record indicates Vision, TWEAN, or Landis ever terminated the 1984 Agreement.\nIn 2008, Landis hired McGavran Engineering, led by Larry McGavran, to: (i) conduct an audit of its pole inventory; and (ii) negotiate a new pole attachment agreement with TWEAN. McGavran completed the audit in November 2008. According to McGavran\u2019s audit, Landis had 3,000 utility poles. TWEAN had 2,100 attachments on 1,594 of these poles. The audit stated TWEAN\u2019s attachments had 946 safety or technical violations.\nWhile completing the audit, McGavran also drafted a new proposed pole attachment agreement (the \u201cProposed Agreement\u201d) for Landis and TWEAN. On 6 October 2008, McGavran submitted a preliminary draft of the Proposed Agreement to Landis. Between October 2008 and August 2009, McGavran revised the Proposed Agreement. In July 2009, McGavran submitted his revised Proposed Agreement to Landis Town Administrator Reed Linn and Landis Director of Public Works Steve Rowland.\nUnder the Proposed Agreement, TWEAN would pay $18 per cable for its first rental year (2009), and the rate would increase by $1.40 per year until 2014. TWEAN usually operated two cables per pole. Thus, at the final 2014 rate, TWEAN would pay $50 per pole under the Proposed Agreement. After the first rental year, either party could terminate the Proposed Agreement by providing written notice 90 days prior to the current term\u2019s end. The Proposed Agreement also included a $10 per pole permit fee and a $15 per day penalty for failure to comply with applicable safety requirements.\nMeanwhile, McGavran also drafted a proposed amendment to Landis\u2019 municipal pole attachment ordinance. The proposed amendment authorized Landis to impose a default pole attachment rate of $50 per year for any \u201ctelecommunications and cable television provider\u201d that did not sign a \u201cTown approved contract to maintain attachments to the same poles\u201d by 9 April 2009. On 9 March 2009, Landis adopted this amendment.\nOn 3 August 2009, McGavran sent the Proposed Agreement to TWEAN. He also included a letter stating that \u201c[the Town] expect[s] [the Proposed Agreement] to be executed within 30 days of receipt of this letter. If this does not occur, we will charge you the default rate as stated in our pole attachment ordinance passed last spring.\u201d The letter also explained that the change from a per-pole rate to a per-cable rate was \u201cin line with standard procedures within the industry for those attaching entities that do not own poles.\u201d Lastly, McGavran promised to send TWEAN the results of an inventory of \u201cpoles, attachments, violations and other items\u201d by 17 August 2009. McGavran sent the inventory to TWEAN on 27 August 2009.\nOn 31 August 2009, TWEAN Senior Director of Construction for the Carolinas Nestor Martin sent aletter to Linn, Landis\u2019 Town Administrator, advising Landis to \u201ctreat this letter as a request under Section 62-[350] (b) to negotiate a new pole agreement, to include a just, reasonable and non-discriminatory rate.\u201d Martin also requested certain cost and valuation data to better evaluate the increased attachment rate. TWEAN then deleted the increased attachment rates from the Proposed Agreement and sent the new version back to Landis.\nOver the next few months, TWEAN and Landis negotiated, but failed to reach an agreement. Nothing in the record indicates TWEAN ever paid the increased pole attachment rate in the Proposed Agreement. On 5 January 2010, TWEAN sent Landis a letter requesting mediation. Landis did not respond.\nOn 19 April 2010, TWEAN filed a complaint in Rowan County Superior Court under N.C. Gen. Stat. \u00a7 62-350 for: (i) refusal to negotiate; (ii) violation of the statute\u2019s non-discrimination requirement; and (iii) other \u201cissues in dispute.\u201d As to its third claim, TWEAN enumerated three specific issues in dispute: (i) Landis\u2019 proposed rental rate of $18 per attachment is unreasonable and unjust; (ii) Landis\u2019 proposed charge per cable rather than per pole is unreasonable and unjust; and (iii) Landis\u2019 proposed fines for non-conforming attachments are unreasonable and discriminatory.\nOn 21 April 2010, Chief Justice Parker designated the action a mandatory complex business case. The following day, it was assigned to the North Carolina Business Court. On 4 June 2010, Landis filed an answer.\nOn 20 December 2010, Landis filed a motion for partial summary judgment as to TWEAN\u2019s claims for: (i) refusal to negotiate; and (ii) discrimination. On 9 February 2011, TWEAN filed a reply brief. On 17 February 2011, the Business Court heard Landis\u2019 arguments. On 30 June 2011, the Business Court entered an order: (i) granting Landis\u2019 motion to dismiss TWEAN\u2019s claim for refusal to negotiate; but (ii) denying Landis\u2019 motion to dismiss the discrimination claim.\nFrom 18 July to 21 July 2011, the Business Court conducted a bench trial on: (i) the discrimination claim; and (ii) the \u201cissues in dispute.\u201d At the close of TWEAN\u2019s evidence, the Business Court denied Landis\u2019 motion for directed verdict for the other \u201cissues in dispute,\u201d but reserved its ruling on the discrimination claim.\nOn 19 June 2012, the Business Court sua sponte raised two concerns about the case: (i) the justiciability of the \u201cissues in dispute;\u201d and (ii) the constitutionality of N.C. Gen. Stat. \u00a7 62-350. To this effect, the Business Court requested supplemental briefs discussing: (i) whether TWEAN had standing; (ii) whether there was a \u201ccase or controversy;\u201d and (iii) whether N.C. Gen. Stat. \u00a7 62-350 violates the separation of powers doctrine and/or is an unlawful delegation of legislative authority. The parties briefed the court on these issues. On 2 October 2012, the Business Court entered an order determining it did not have subject matter jurisdiction because TWEAN did not satisfy the controversy requirement. The Business Court then dismissed the case without prejudice. On 12 October 2012, TWEAN filed timely notice of appeal.\nII. Standard of Review\n\u201cWhether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.\u201d McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.\u201d State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).\nIII. Analysis\nOn appeal, TWEAN argues the Business Court erred in dismissing its case for lack of subject matter jurisdiction because: (i) N.C. Gen. Stat. \u00a7 62-350 authorizes TWEAN to enforce its statutory pole attachment rights; or alternatively, (ii) TWEAN faces imminent harm. Plaintiff then argues the trial court\u2019s decision improperly nullified N.C. Gen. Stat. \u00a7 62-350. Upon review, we reverse and remand.\n\u201cJurisdiction is \u2018[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it. \u2019 \u201d In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 789-90 (2006) (quoting Black\u2019s Law Dictionary 856 (7th ed. 1999))(alteration in original). \u201cIf a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.\u201d Sarda v. City/County of Durham Bd. of Adjustment, 156 N.C. App. 213, 215, 575 S.E.2d 829, 831 (2003) (quotation marks and citation omitted). A party may not waive [subject matter] jurisdiction.\u201d Reece v. Forga, 138 N.C. App. 703, 704, 531 S.E.2d 881, 882 (2000).\nTo satisfy jurisdictional requirements, courts must have both personal jurisdiction and subject matter jurisdiction. In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790. First, courts \u201cmust have personal jurisdiction over the parties to bring [them] into [the] adjudicative process.\u201d Id. (quotation marks and citation omitted)(first alteration in original). \u201cMore importantly for our purposes, the court must also have subject matter jurisdiction, or ^jurisdiction over the nature of the case and the type of relief sought.\u201d Id. (quotation marks and citation omitted)(alteration in original). \u201cSubject matter jurisdiction is conferred upon the courts by either the North Carolina Constitution or by statute.\u201d Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987) (citing N.C. Const. art. I, \u00a7 18).\nTwo aspects of subject matter jurisdiction are: (i) the standing requirement; and (ii) the controversy requirement. We now discuss each of those in turn.\n\u201cStanding is that aspect of justiciability focusing on the party seeking a forum rather than on the issue he wants adjudicated.\u201d Creek Pointe Homeowner\u2019s Ass\u2019n v. Happ, 146 N.C. App. 159, 165, 552 S.E.2d 220, 225 (2001). In Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 574 S.E.2d 48 (2002), our Court elaborated on North Carolina\u2019s \u201cstanding\u201d doctrine:\n[Standing] refers to whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter. Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 1364-65, 31 L.Ed.2d 636, 641 (1972). The \u201cirreducible constitutional minimum\u201d of standing contains three elements:\n(1) \u201cinjury in fact\u201d-an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan [v. Defenders of Wildlife], 504 U.S. [555,] 560-61 [(1992)].\nNorth Carolina courts are not constrained by the \u201ccase or controversy\u201d requirement of Article III of the United States Constitution. Our courts, nevertheless, began using the term \u201cstanding\u201d in the 1960s and 1970s to refer generally to a party\u2019s right to have a court decide the merits of a dispute. See, e.g., Stanley, Edwards, Henderson v. Dept. of Conservation & Development, 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973).\nId. at 114, 574 S.E.2d at 51-52.\nThe controversy requirement, on the other hand, focuses on the issue being adjudicated rather- than the party seeking adjudication. See Creek Pointe Homeowner\u2019s Ass\u2019n, 146 N.C. App. at 165, 552 S.E.2d at 225. Although \u201cNorth Carolina courts are not constrained by the \u2018case or controversy\u2019 requirement of Article III of the United States Constitution,\u201d Neuse River Foundation, Inc., 155 N.C. App. at 114, 574 S.E.2d at 52, our courts still require \u201cthe existence of a justiciable . . . controversy.\u201d Prop. Rights Advocacy Group v. Town of Long Beach, 173 N.C. App. 180, 182, 617 S.E.2d 715, 717 (2005) (quotation marks and citation omitted); see also Goldston v. State, 361 N.C. 26, 33, 637 S.E.2d 876, 881 (2006); Town of Tryon v. Duke Power Co., 222 N.C. 200, 204, 22 S.E.2d 450, 453 (1942).\nA justiciable controversy entails \u201can actual controversy between parties having adverse interests in the matter in dispute.\u201d Gaston Bd. of Realtors, Inc. v. Harrison, 311 N.C. 230, 234, 316 S.E.2d 59, 61 (1984). To satisfy this requirement:\n[T]he plaintiff shall allege in his complaint and show at the trial that a real controversy, arising out of their opposing contentions as to their respective legal rights and liabilities ... exists between or among the parties, and that the relief prayed for will make certain that which is uncertain and secure that which is insecure.\nCarolina Power & Light Co. v. Iseley, 203 N.C. 811, 820, 167 S.E. 56, 61 (1933). \u201cLegal rights and liabilities must rest upon some reasonably settled basis, fixed either by the common law or by statute.\u201d Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 413, 62 S.E. 600, 607 (1908).\nThus, allegations based on statutory rights can satisfy the controversy requirement. See Carolina Power & Light Co., 203 N.C. at 820, 167 S.E. at 61 (acknowledging that \u201clegal rights and liabilities\u201d can arise \u201cunder a statute\u201d); Briscoe, 148 N.C. at 413, 62 S.E. at 607. Still, \u201c[o]ur caselaw generally holds that a statute allows for a private cause of action only where the legislature has expressly provided a private cause of action within the statute.\u201d Vanasek v. Duke Power Co., 132 N.C. App. 335, 339 n.2, 511 S.E.2d 41, 44 n.2 (1999), overruled on other grounds by Lovelace v. City of Shelby, 351 N.C. 458, 526 S.E.2d 652 (2000).\nNorth Carolina\u2019s Declaratory Judgment Act expands the controversy requirement by establishing that trial courts not only have jurisdiction over alleged prior violations of rights, but also when litigation over a potential violation \u201cappear[s] unavoidable.\u201d Gaston Bd. of Realtors, 311 N.C. at 234, 316 S.E.2d at 61. However, the\u201c[m]ere apprehension or the mere threat of an action or a suit is not enough.\u201d Id. at 234, 316 S.E.2d at 62. \u201cThus the Declaratory Judgment Act does not \u2018require the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise.\u2019 \u201d Id. (quoting Town of Tryon, 222 N.C. at 204, 22 S.E.2d at 453).\nIn the present case, TWEAN argues the Business Court has subject matter jurisdiction because TWEAN\u2019s allegations satisfy the controversy requirement. We agree.\nSince TWEAN\u2019s claim arises under N.C. Gen. Stat. \u00a7 62-350, we preliminarily discuss the legislative intent behind that statute as part of North Carolina\u2019s Public Utilities Act. See Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (\u201cThe principal goal of statutory construction is to accomplish the legislative intent.\u201d). When our legislature drafted the Public Utilities Act, it established, inter alia, the following goals: (i) \u201c[t]o provide fair regulation of public utilities in the interest of the public;\u201d and (ii) \u201c[t]o provide just and reasonable rates and charges for public utility services without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices.\u201d N.C. Gen. Stat. \u00a7 62-2(a)(1) and (4) (2011). Thus, the Public Utilities Act endorses regulatory intervention to promote \u201cjust and reasonable rates.\u201d See id.\nIn light of this legislative intent, we now examine the contours of N.C. Gen. Stat. \u00a7 62-350. First, N.C. Gen. Stat. \u00a7 62-350(a) establishes that \u201c[a] municipality... that owns or controls poles, ducts, or conduits shall allow any communications service provider to utilize its poles, ducts, and conduits at just, reasonable, and nondiscriminatory rates, terms, and conditions adopted pursuant to negotiated or adjudicated agreements.\u201d N.C. Gen. Stat. \u00a7 62-350(a) (2011).\nThe statute also allows communications service providers like TWEAN to require municipalities to negotiate for \u201cjust, reasonable, and non-discriminatory\u201d pole attachment rates:\nFollowing receipt of a request from a communications service provider, a municipality or membership corporation shall negotiate concerning the rates, terms, and conditions for the use of or attachment to the poles, ducts, or conduits that it owns or controls. Following a request from a party to an existing agreement made pursuant to the terms of the agreement or made within 120 days prior to or following the end of the term of the agreement, the communications service provider and the municipality or membership corporation which is a party to that agreement shall negotiate concerning the rates, terms, and conditions for the continued use of or attachment to the poles, ducts, or conduits owned or controlled by one of the parties to the agreement.\nN.C. Gen. Stat. \u00a7 62-350(b) (2011).\nLastly, the statute allows communications service providers to bring suit in Business Court if the parties fail to reach an agreement:\nIn the event the parties are unable to reach an agreement within 90 days of a request to negotiate pursuant to subsection (b) of this section, or if either party believes in good faith that an impasse has been reached prior to the expiration of the 90-day period, either party may bring an action in Business Court in accordance with the procedures for a mandatory business case set forth in G.S. 7A-45.4, and the Business Court shall have exclusive jurisdiction over such actions.\nN.C. Gen. Stat. \u00a7 62-350(c) (2011).\nNext, we discuss the types of justiciable controversies N.C. Gen. Stat. \u00a7 62-350 contemplates. To this end, we interpret N.C. Gen. Stat. \u00a7 62-350 to establish several judicially-enforceable statutory rights. See Carolina Power & Light Co., 203 N.C. at 820, 167 S.E. at 61; Briscoe, 148 N.C. at 413, 62 S.E. at 607. For instance, N.C. Gen. Stat. \u00a7 62-350 creates a statutory right for both communications service providers and municipalities to establish \u201cjust, reasonable, and nondiscriminatoiy\u201d pole attachment rates within 90 days of a request to negotiate. See N.C. Gen. Stat. \u00a7 62-350(c) (2011).\nFurthermore, the statute expressly creates a private cause of action to enforce these rights. See Vanasek, 132 N.C. App. at 338 n.2, 511 S.E.2d at 44 n.2. Specifically, it allows \u201ceither party [to] bring an action in Business Court in accordance with the procedures for a mandatory business case.\u201d N.C. Gen. Stat. \u00a7 62-350(c). Thus, communications service providers satisfy the controversy requirement when they \u201callege in [their] complaint and show at the trial that a real controversy, arising out of [these statutory rights] .. . exists.\u201d Carolina Power & Light Co., 203 N.C. at 820, 167 S.E. at 61; Briscoe, 148 N.C. at 413, 62 S.E. at 607.\nHere, the Business Court determined it did not have subject matter jurisdiction because TWEAN did not satisfy the controversy requirement. Specifically, the Business Court held TWEAN did not allege: (i) a prior violation of its rights; or (ii) the imminent threat of a violation. Upon review, we conclude the Business Court erred because TWEAN showed a controversy exists under N.C. Gen. Stat. \u00a7 62-350.\nTo this effect, TWEAN alleged a prior violation of its statutory right to establish \u201cjust, reasonable, and nondiscriminatory\u201d pole attachment rates within 90 days of a request to negotiate. See N.C. Gen. Stat. \u00a7 62-350(c). It then presented evidence supporting its allegation. First, TWEAN submitted a request to negotiate to Landis on 31 August 2009. Next, TWEAN negotiated with Landis for more than 90 days. In fact, the Business Court implicitly acknowledged the parties negotiated when it dismissed.TWEAN\u2019s refusal to negotiate claim. Despite these negotiations, the parties failed to reach an agreement. Once 90 days had passed, TWEAN filed its complaint under N.C. Gen. Stat. \u00a7 62-350.\nContrary to the Business Court\u2019s determination, the controversy here is not the future possibility of increased pole attachment rates. Instead, the controversy arises from the parties\u2019 failure to reach an agreement within 90 days. This failure violated TWEAN\u2019s right to establish \u201cjust, reasonable, and nondiscriminatory\u201d pole attachment rates within 90 days of a request to negotiate. While we make no determination as to whether the pole attachment rates in the Proposed Agreement are \u201cjust, reasonable, and nondiscriminatory,\u201d we determine there exists a justiciable controversy.\nConsequently, the Business Court erred in determining it did not have subject matter jurisdiction. Because we base our decision on TWEAN\u2019s first argument, we decline to address its other arguments.\nIV. Conclusion\nFor the foregoing reasons, we: (i) reverse the trial court\u2019s determination that it did not have subject matter jurisdiction; and (ii) remand for further proceedings.\nREVERSED and REMANDED.\nJudges McGEE and STEPHENS concur.\n. The rate in the 1984 Agreement is comparable to rates in other areas of North Carolina. For instance, TWEAN contends it pays an average of $5.91 per pole per year to North Carolina investor-owned utilities companies and $4.05 per pole per year to North Carolina telephone companies.\n. The $50 proposed rate constitutes a 1,566% increase from the rate in the 1984 Agreement. TWEAN contends that some adjustment may be necessary, but until a consensus is reached it should continue to pay only $3 per pole, the rate from the 1984 Agreement.",
        "type": "majority",
        "author": "HUNTER, JR., Robert N., Judge."
      }
    ],
    "attorneys": [
      "Brooks, Pierce, McLendon, Humphrey & Leonard, by Reid Phillips, and Hogan Lovells US LLP, by Gardner Gillespie and Paul Werner, for plaintiff-appellant.",
      "PoynerSpruillLLP, by Andrew H. Erteschik, for defendant-appellee.",
      "Nelson Mullins Riley & Scarborough, by Joseph W. Eason, Christopher J. Blake, and Phillip A. Harris, Jr., for the North Carolina Association of Electric Cooperatives, amicus curiae.",
      "David M. Barnes, for Electricities of North Carolina, Inc., amicus curiae."
    ],
    "corrections": "",
    "head_matter": "TIME WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP, Plaintiff v. TOWN OF LANDIS, NORTH CAROLINA, Defendant\nNo. COA 13-22\nFiled 6 August 2013\nJurisdiction \u2014 subject matter \u2014 justiciable controversy \u2014 failure to reach agreement\nThe Business Court erred by dismissing plaintiff\u2019s complex business case based on lack of subject matter jurisdiction. The justiciable controversy was the parties\u2019 failure to reach an agreement within 90 days. The case was remanded for further proceedings.\nAppeal by plaintiff from order entered 2 October 2012 by Judge Calvin E. Murphy in the North Carolina Business Court. Heard in the Court of Appeals 23 April 2013.\nBrooks, Pierce, McLendon, Humphrey & Leonard, by Reid Phillips, and Hogan Lovells US LLP, by Gardner Gillespie and Paul Werner, for plaintiff-appellant.\nPoynerSpruillLLP, by Andrew H. Erteschik, for defendant-appellee.\nNelson Mullins Riley & Scarborough, by Joseph W. Eason, Christopher J. Blake, and Phillip A. Harris, Jr., for the North Carolina Association of Electric Cooperatives, amicus curiae.\nDavid M. Barnes, for Electricities of North Carolina, Inc., amicus curiae."
  },
  "file_name": "0510-01",
  "first_page_order": 520,
  "last_page_order": 529
}
