Western Union moved to dismiss its case). At that time, in September, 1990, the City was negotiating with ATS. The City's motion to substitute ATS was denied. At no time did the City ever concede that Western Union or ATS was entitled to access to the public way without its permission. The City is not estopped from arguing the res judicata effect of the prior litigation.
(6) Harm to the Parties
The City faces the loss of control of the public ways if ATS makes unauthorized entries into the tunnel system. The nature of the system under the public streets is such as to pose danger to the public and other utilities if entry is made without standards. No adequate remedy at law exists for the kind of public injury which could occur from an uncontrolled use of the tunnel system.
The Illinois Underground Utility Facilities Damage Prevention Act, relied upon by ATS as a basis for arguing that regulatory control is in the state and not in the City, expressly allows the City's operation of the Chicago Utilities Alert Network, because the City has a population over one million. Ill. Rev. Stat. ch. 111 2/3 para. 1603, § 3 (supp. 1990). The City's important role in the activity of controlling this system would be undermined by the action ATS seeks to take. The public interest militates strongly in favor of upholding the power of the City to control access to the City's underground tunnels.
ATS contends, without any specific showing, that it will lose customers, business and market share if it is not permitted to expand its system. Its presentation is far from specific as to how or why it needs to expand its system. However, since at least March of 1990, ATS has been aware of the problem of its authority. Moreover, the type of harm it claims is ascertainable as money damages. No specific evidence was presented to show otherwise.
Because the City is so much more likely to win on the merits of this case than ATS, only a slight showing that the balance of harms weighs in its favor is necessary. Ping v. National Educ. Ass'n, 870 F.2d 1369, 1371-72 (7th Cir. 1989); Desert Partners, L.P. v. USG Corp., 686 F. Supp. 1289, 1293-94 (N.D. Ill. 1988). Without regard to the merits, however, the balance of harms weighs strongly in favor of granting the City's motion to enjoin further expansion and to maintain the status quo.
Neither the City nor ATS discussed the question, or the amount, of a bond in their original submissions to the court. At the conclusion of the hearing, each party was directed to submit a memorandum on the subject within five days.
Rule 65(c) requires that a bond be posted in support of an injunction. The City asked that a bond or security be waived because of its ability to satisfy judgments of this court. Dillon v. City of Chicago, 866 F.2d 902, 905 (7th Cir. 1988); Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977). Since neither party addressed the topic of the amount of a bond, only such amount as will secure the payment of costs and nominal damages should be required.
IT IS THEREFORE ORDERED as follows:
(1) The Clerk of the Court is directed to issue an injunction preliminarily restraining, until further order of the court, Western Union ATS, Inc., its officers, employees, and agents from entering in, upon or under the streets of the City of Chicago for the purpose of adding to or expanding its fiber optic cable system in any manner without the express permission of the City of Chicago, provided, however, that the City shall not, during the pendency of this preliminary injunction, withhold reasonable access to the City's street tunnel system to Western Union ATS, Inc. for the purpose of repairing or maintaining its presently existing fiber optic cable system.
(2) This preliminary injunction shall be effective upon the posting by the City of its bond in the penal sum of $ 5,000 to protect Western Union ATS, Inc. from damages should it be determined that a preliminary injunction was wrongfully issued. Surety and security for the City is hereby waived.
(3) This case is set for a hearing on status on March 13, 1991 at 9:15 a.m.