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08/25/88 American Telephone and v. the Village of Arlington

August 25, 1988

AMERICAN TELEPHONE AND TELEGRAPH COMPANY ET AL., PLAINTIFFS-APPELLEES

v.

THE VILLAGE OF ARLINGTON HEIGHTS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

528 N.E.2d 1000, 174 Ill. App. 3d 381, 124 Ill. Dec. 109 1988.IL.1303

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This is an interlocutory appeal from the order of the circuit court of Cook County granting plaintiffs, American Telephone and Telegraph Company and AT&T Communications of Illinois, Inc., a preliminary injunction to enjoin defendants, the Villages of Arlington Heights, Palatine, Barrington, and Lake Barrington and the City of Crystal Lake (all municipal corporations in Illinois) from interfering with their installation of a cable system in the public streets. The trial court further ordered that a team of three arbitrators be chosen to aid the court in deciding the issue of fair compensation. On appeal, defendants raise the following issues: (1) whether they have an absolute right to bar plaintiffs from the use of their streets for any reason they believe is proper, and (2) whether the trial court abused its discretion by issuing a preliminary injunction.

We affirm in part and reverse in part.

American Telephone and Telegraph Company is authorized by the Federal Commerce Commission to provide interstate long distance telephone and telecommunication services throughout the United States. AT&T Communications of Illinois, Inc., holds a certificate of public convenience and necessity from the Illinois Commerce Commission (hereinafter ICC) to provide intrastate long distance and telecommunication services in Illinois. Plaintiffs planned to construct a fiber optics system from Glenview to Rockford, approximately 85 miles. An easement was purchased in the right-of-way of Chicago and Northwestern Railroad in order to install the cable on private property. However, plaintiffs required approximately 1,200 feet of public way through defendants' streets in order to make the cable contiguous and operational.

Plaintiffs hired Donahue & Associates, an engineering firm, to design the cable system. In February 1987, a permit coordinator from the firm began inquiries with respect to securing permits from defendants. Plaintiffs were informed that unless they entered into a franchise agreement with defendants no action would be taken on their permit applications. Defendants sought Northwest Municipal Conference, an organization representing approximately 22 suburban communities in Cook County, to represent them in negotiations with plaintiffs concerning such agreements.

By August 1987, plaintiffs had not been able to secure permits from defendants. Thereafter, plaintiffs sent a 10-day notice to defendants, pursuant to "An Act relating to the powers, duties and property of telephone companies" (Ill. Rev. Stat. 1985, ch. 134, par. 20) (hereinafter Telephone Act). The notice indicated that plaintiffs intended to begin construction of their cable system under defendants' streets and requested defendants to provide time, manner, and place specifications within 10 days, as required by the Telephone Act. Defendants failed to respond and, after waiting the required time, plaintiffs commenced construction. Defendants issued stop work orders and plaintiffs filed an action in the circuit court of Cook County.

The trial court issued a preliminary injunction, finding that defendants "exceeded the reasonable scope of their regulatory powers." The court denied defendants' request to stay its order. Subsequently, defendants sought stay of the preliminary injunction pending resolution of this appeal. The motion was denied by court order on November 6, 1987.

Defendants contend that plaintiffs are not entitled to utilize their public streets without their consent. They argue that the City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, cert. denied (1942), 316 U.S. 670, 86 L. Ed. 1746, 62 S. Ct. 1046, resolves any doubt concerning a municipality's authority over the streets therein. The Geneseo court held that the authority granted to a municipality to allow or refuse a license, permit, or franchise to a public utility was not repealed by the Public Utilities Act (Ill. Rev. Stat. 1939, ch. 24, par. 383). The court further held that the Public Utilities Act does not vest power in the ICC to extend a franchise which has expired, or the exclusive right to authorize a public utility to occupy a street without a franchise or permit. (Geneseo, 378 Ill. at 530.) However, the court acknowledged the well-settled rule that where there is a conflict between a specific grant of power to the ICC which is in opposition to a similar power granted to a city or municipality, the former will prevail. Geneseo, 378 Ill. at 514.

The Geneseo court does not address the rights accorded to a public utility where a certificate of public convenience and necessity is issued by the ICC, pursuant to the Public Utilities Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 8-406) (hereinafter Utilities Act). Neither does the court discuss rights afforded the plaintiffs under the Telephone Act (Ill. Rev. Stat. 1985, ch. 134, par. 20). These issues are germane to the present case; therefore, Geneseo is not dispositive of this case.

Defendants also rely on the Cities and Villages Act (Ill. Rev. Stat. 1985, ch. 24, pars. 11-80-1 to 11-80-3, 11-80-7) and the Telephone Act to support their position. The relevant sections in the Cities and Villages Act only grant municipal corporations regulatory powers. The extent of those ...


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