City of Memphis, et al. v. Tandy J. Gilliland Family LLC, et al.

This is the second appeal of this eminent domain case. In the first appeal, City of Memphis v. Tandy J. Gilliland Family, LLC, et al., 391 S.W.3d 60 (2012), this Court held that Appellee City of Memphis, a municipal corporation for the use and benefit of Memphis Light, Gas, and Water Division, was entitled to condemn a portion of Appellants’ property to erect poles and other facilities to provide utility services to MLGW customers. In addition to the provision of utility services, Appellee also sought co-location rights to allow telecommunications and cable providers to attach to MLGW’s poles. In the first appeal, Appellants argued that the co-location rights transformed the condemnation from public to private use. In our first opinion, we held that the Pole Attachment Act, 47 U.S.C. § 224, mandated that MLGW would allow co-location rights. On remand, the trial court held that it was bound by the law of the case as set out in our first opinion and denied Appellants discovery concerning the co-location rights before granting those rights to Appellee. In the instant appeal, Appellants contend that our previous holding was incorrect because the Pole Attachment Act specifically exempts MLGW from the definition of “utility.” We agree, and reverse our previous holding to the extent that we held that the Pole Attachment Act is mandatory on MLGW. Because of our erroneous holding, the issues of whether MLGW is entitled to co-location rights and the proper compensation, if any, for these rights have not been addressed in the trial court. Accordingly, we vacate the trial court’s order insofar as it grants Appellee co-location rights and remand the case for discovery and hearing on these issues. We affirm the trial court’s order insofar as it allows Appellee to condemn Appellants’ property for utility purposes.