Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

MEMORANDUM^* 

Ultronics, Inc., a Southern California cable television operator, appeals the summary judgment ruling of the district court in favor of McMillin Financial, Inc., a real estate development concern. McMillin required Ultronics to pay a fee to lay cable in a utility trench that McMillin was digging for a new development. Ultronics claimed that this violated section 621(a) (2) of the Cable Communications Policy Act of 1984, 47 U.S.C.A. Sec. 541(a) (2).

The district court held that this statute did not create an implied right of action in favor of cable television franchisees, and therefore Ultronics had no federal claim. In addition, the district court held that even if such a private right of action existed, Ultronics did not state a cause of action under the Cable Act.

Ultronics urges us to find an implied right of action in section 621(a) (2). We follow the lead of the Third Circuit and look first to see if the Cable Act provides the substantive right in issue before determining whether there is an implied right of action. See Cable Investments, Inc. v. Wooley, 867 F.2d 151 (3d Cir. 1989).

Ultronics' substantive claim is that it should not have to pay excavation costs to McMillin because the Cable Act grants it the right to use the utility easement. However, the statute also provides, "that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator...." 47 U.S.C. § 541(a) (2) (B). On its face, this language refutes Ultronics' argument. Ultronics did not present any evidence to support its claim that McMillin's charges for sharing of excavation costs were excessive or unreasonable. It submitted only speculations. McMillin submitted unrebutted affidavits to demonstrate that the conditions it imposed were reasonable. McMillin has met its burden for summary judgment; Ultronics has not. See Celotex v. Catrett, 477 U.S. 317 (1986). We affirm the district court's ruling on this basis and do not reach the question of whether section 621(a) (2) has an implied right of action.

AFFIRMED.