Iowa Right-of-Way Litigation Support
CITY OF DUBUQUE, IOWA
MEMORANDUM
February 11, 1999
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT:
Iowa Right-of-Way Litigation Support
Cable Franchise Administrator Merrill Crawford is recommending that the City
contribute an additional $10,000 from the Cable TV Fund to the Iowa League of
Cities in support of continuing court action to protect the rights of Iowa cities in
their rights-of-way.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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MJichael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
Merrill Crawford, Cable Franchise Administrator
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 5, 1999
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator~
SUBJECT: Iowa Right-of-Way Litigation Support
INTRODUCTION: The purpose of this memorandum is to recommend that the City of
Dubuque contribute an additional $10,000 from the Cable TV Fund to the Iowa
League of Cities in support of continuing court action to protect the rights
of Iowa cities in their rights of way.
BACKGROUND: The attached February 2, 1999 letter from Thomas Bredeweg of the
Iowa League of Cities reports the status of important litigation between US
West and the City of Coralville, Iowa. This court battle is expected to play
a significant role in determining the future landscape of local right-of-way
management, infrastructure construction & maintenance cost, and Home Rule
authority of Iowa cities.
Pursuant to City Council Resolution No. 394-97, adopted September 15, 1997,
the City of Dubuque contributed $10,000 to a legal fund to meet the growing
legislative and court assault on the rights of Iowa cities to regulate the use
of their rights of way and to receive payment from the users of the rights of
way for their use. Of particular concern at that time was the "Rule of 1897"
which US West and others claim grants them perpetual free use of city rights-
of-way, and provisions of proposed new legislation eliminating the power of
cities to grant franchises for telecommunications systems.
Since that time, US West has filed suit against the City of Coralville, Iowa,
which had adopted a new right-of-way ordinance. The Iowa League and
individual Iowa cities have stepped in to support Coralville, and a variety of
telecommunications companies have joined US West as the importance of this
case grows. The issues are directly relevant to City of Dubuque efforts to
develop a new right-of-way ordinance, to renew our existing cable franchise
and negotiate additional ones, to manage finite space and resources below our
streets, and to protect the taxpayer from the burden of exponential increases
in street repair and replacement costs resulting from new commercial
enterprises in the rights-of-way.
Corporation Counsel Barry Lindahl serves as a member of the Iowa League's
litigation committee regarding this manner. I have discussed the League's
request with him and with Administrative Services Manager Pauline Joyce, and
with their concurrence have determined that the current FY1999 Cable TV
Division budget, and projected FY-1999 franchise fee revenues, can support
another contribution of $10,000.
While we find ourselves perhaps in a better position at this time than many
cities in our ability to respond to the League's call for additional funding,
I believe it is also true that Dubuque has potentially more to lose than many
cities if the municipal position in the Coralville litigation is not fully
supported and the well-funded telecommunications industries are able to shape
the future of Iowa right-of-way law unilaterally.
RECOMMENDED ACTION: The Recommended Action is that the City Council authorize
a second contribution of ten thousand dollars ($10,000) from the Cable TV Fund
to the Iowa League of Cities to continue its efforts in court to protect the
rights of Iowa cities in their rights-of-way.
cc: Barry A. Lindahl, Corporation Counsel
Pauline Joyce, Administrative Services Manager
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IOWA
LEAGUE
Qf CITIES
February 2, 1999
TO:
Contributing League Member Cities
City Attorneys I h
Thomas G. Bredeweg, Executive Director Jr/l1 Y
FROM:
SUBJECT:
Telecommunications Litigation (US West, et. aI., vs. City of Coralville)
SECOND REQUEST FOR ASSISTANCE
THE LEAGUE STILL NEEDS YOUR HELP
Your city was one of more than 120 cities that answered the League's first request for financial assistance
supporting litigation involving telephone companies in the public right of way. Our initial request was for a
contribution equaling 5 cents per capita, and resulted in total contributions in excess of $75,000. The League
respectfully requests another contribution at the same level to support the effort of cities to defend critical
management interests in the public right of way.
As we have reported to you, the case in question is U S West vs. City of COTalvilIe. The process of discovery is
presently underway and will take some time in getting completed. Motions, briefs, and supporting
documentation has been researched and drafted and more will be required. There have been several initial court
appearances for hearings on motions but many more will follow. It is likely this case will not be resolved by
summary judgment, which necessitates a trial and expert testimony. Regardless of the decision at the lower
court level, it is probable this case will wind up in the Iowa Supreme Court.
All of this requires a tremendous amount of time from counsel, Ivan Webber, Ahlers Law Firm, and Kirstene
Diehl, Coralville Assistant City Attorney. US West and GTE are devoting extensive resources in support of
their position and we must be able to meet this challenge. The League still has on hand approximately half of
the funds pledged in the initial request. Late last year we made a second request of cities that declined to
participate initially suggesting a ten-cent per capita contribution. We are pleased to report as of December 31,
114 new cities have committed almost $12.500.00 in additional support.
The funds contributed are in good hands. The litigation committee, which has been established to monitor the
case, is making good use of the funds. The committee is chaired by Jim Abshier, City Attorney, Sioux City.
The other members are: Steve Bakke. City Attorney, Forest City; Bruce Bergman, Corporate Counsel, Des
Moines; Kirstene Diehl, Assistant City Attorney, Coralville; Rick Franck, City Attorney, Denison; Robert
Kindred, Assistant City Manager, Ames; Barry Lindahl, Corporate Counsel, Dubuque; Donald Martin, City
Coordinator, Vinton; Gordon Greta, Legal Counsel, Iowa Association of Municipal Utilities; and Bill Sueppel,
League Counsel.
The League is asking for a second commitment of S.05 per capita. Your city contributed to the first request for
assistance because you believed the issues were that important. We hope that you will continue to support this
case, but we realize you are under no obligation to do so. We are requesting that the city council put this item
on the agenda for the next meeting. A sample resolution is attached. If you decide to participate, please send
either a copy of the signed resolution or a signed letter to the League office. We would appreciate a response by
February IS, 1999.
TGB:mm
317 SIXTH AVENUE 0 SUITE 1400 0 DES MOINES, IOWA 50309-4122
(515) 244-7282 0 FAX (515) 244-0740 0 E-MAil: ialeague@netins.net
Se.n.,.:ing Iowa '5 cities
since 1898
PreSident
George F Maybee
MO'lor. Boone
Presidenf-elect
DaVid l Aldridge
l/\cyor, Newton
Pas! President
Ann Hutchinson
Mayor. Bettendorf
b'f:cutive Director
Thomas G 8redeweg