our rd case for argument today is west against charter communications water container has a peculiarity it doesn't matter how you try to pour it it resist please mr cox appropriate a private easement believe it or not mr cox i think we have three jurisdictional issues before we get there i want to start with the simplest whether we have an appealable judgment from the district court the ground on which this court dismissed the appeal last time i would have thought that having had a previous appeal dismissed you would be scrupulous jurisdiction so i look in your brief to find a district court's judgment which our rules require to be there and it's not there  it's just not the original opinion is up and not the judge the final the rules require both the opinion and the judgment so i went and got the judgment and it says the court now enters final judgment in favor of charter and against west it also reports that west claim against louisville has been settled there were a course claims against them appear to be still pending in the district court and then we don't have a final decision is there a way around this problem i believe the way around it is i think everyone before the court today or it would see that all of the claims are twelve people around the table now might think that but those with us trick judge think that absolutely or how do we know i don't have that particular judgment front of me but i it in a judgment did you point out to the judge that this judgment is not conclusive no one ever no one everywhere address the issue as to whether the cable company was treated well i suspect you may need to go back to the district judge and get a final judgment nd jurisdictional problem in this case concerns subject matter jurisdiction as you know but apparently charter does not know when there are every single member of them all the way down to the bottom your brief has quite a list but it doesn't appear to go all the way down to the bot and charter has furnished us we directed it to file a supplemental jurisdictions because it's brief is plainly inadequate if on a supplemental jurisdictional statement the treats partnerships and l l c is as if they were corporations and reveals none of the membership or the citizenship of any of the members so how do we know that we have complete diversity of citizenship we allege that your honor in the original complaint the issue wasn't raised by time warner it was raised the st time on appeal yes where we responded with the best information we had but the best information you have is not complete and and we thought it was probably went all the information better than you do and then charter filed a document which was legally proper posterous by treating partnerships the same as corporations so how do we know we have diversity of citizenship and your honor with all due respect i thought only with through it only work work through the partners were of the partnerships we got all the way down to the corporate entity where we where we address the issue you are no i couldn't i couldn't work that out for myself and we did it and the one litigant that knows the answer has despite being ordered to provide it failed to do so this leaves us in a very difficult  finally i said i have three jurisdiction i don't understand why this isn't a request for an advisory opinion the district court peers to have resolve charter not the rights of louisville the charter and your honor we took his opinion as expressing that the cable company had the right to install that line or keep that line across mr west property based on th and that as we appealed with respect to louisville that's perfectly straightforward but it's not remotely clear that this act creates any rights  trespassers charter hasn't come on your lands charter is put its fiber optic cable on there you know if i understand correctly louisville has put a fiber optic cable on and is leasing space to charter or anybody else who will pay it take take another normal example an electric utility like louisville will wheel power for rd parties for dayton power for indianapolis power and light you don't have to have a deal between mr west and indianapolis power and light for louisville to wheel somebody else's power over that line it's not a separate trespass the information and electricity that go through the line are not themselves trespasses i see the problem i understand your concern your honor under the terms of the agreement between the cable companies and l g and he it says i wish you would use real words l g and he is not a word under the cloud the power company you can call up the power company you can call it loui goes i've been doing i guess you might or might not have a good claim against louisville but that claim has been settled i don't understand how somebody whose power or information goes over the tower that louisville maintains is a separate trespass that's what i'm missing from my perspective your honor st of all the agreement between  and i have a company says that under no circumstances should that be bucket of mobiles property look you may or may not have a good claim against louisville but we've always been that claim has been settled  i'm trying to figure out whether west has a claim against charter whose information goes over the line but which does not physically trespass on the property and the agreement says that that line is line am i being unclear the agreement is an agreement between west and louisville correct what rights west has to be of the louisville are not before us that's been settle i'm trying to figure out how a claim that louisville has allowed its powers to transmit information is a claim of trespass under any  if louisville has no right to give somebody permission to come on a rd party's property if if they tell a rd nother person they can get it on i have not seen a claim that any rd party came on the property at all the description is that this wire was strong by louisville this is time warner's wire if i don't operate on west property did time warner there's no judgment about time or the brief actually says there's no such thing as time or let's call it charter or if they prefer insight are you alleging that employees of charter or insi came on west's land to install this wire ok they come on the property to maintain it they've been on his property that's how my client found out that it was on the his tower ok so you are going ok i just want to be clear you are all legit physical trespass and not just informational transmission it's correct correct the cable act and what this appeal hinges on if we get past the issues your honour's raised allows for cable companies to install a cable system over public rights of way and t th th have done they've all looked at that issue and said the term dedicated means in the legal sense not the ordinary sense and what that means is we look at what they've done which is the black's law dictionary definition which is the appropriation of land or an easement by the owner for the use of the public and there's been acceptance for such use by the public so if that were applied in this case that the district court's decision was wrong the district court got off the rails by looking at a michigan court of appeals case ignoring the five circuits that have already addresses issues and found a dedicated meant the legal definition and th consideration to the one thousand nine hundred and eighty four house report that addressed this issue and seemed to use the term and that phrase units were narry sense rather than the narrower legal sense again as i mentioned every circuit after that point has has i'm asking we haven't decided this question before working from the statutory text which seems ambiguous the legislative history seems to favor a broader reading why should we not pay attention to that the legislative history if you go back and look at started with the bill and there was a section six hundred and thirty three and so the purposes for the act were stated when there was a six thirty three dollars and their six  was a portion of the act that addressed landlords multifamily properties commercial properties where you had landlords and mobile home parks and what they said in that situation was that we're going to allow cable companies to come in but we're going to provide for compensation for the taking in that situation then you had this situation where you have  the words compatible are dedicated for compatible uses and then there's a rd category that other cases of talked about which are just private easements regular old properties if you construe the middle category is dedicated for compatible uses to mean the broader situation or the broader definition you wouldn't have needed six hundred and thirty three in the person st place which they originally deleted because every easement would allow for a cable referring to six hundred and thirty three that i believe that they were talking about it in the context before six hundred and thirty three was deleted when six hundred and thirty three was deleted it it became became clear that number one cable companies couldn't go in and take easements and multifamily commercial or mobile home parks but they also made it apparent that the only way you could get access through the cable act was in this other sort of bucket which is the easement through i'm sorry dedicated easements that are dedicated for compatible uses it doesn't in that category  open that category if it were interpreted in the way you just asked there wouldn't have been a need originally for the multifamily six hundred and thirty three section that they intentionally deleted to resolve some of the problems that other senators raise ok i also want to ask you about the relationship between state and federal law here and if we can get past your social problems we may not be able to meet and i hope the defense will also talk about this a little bit and that is this notion of compatible uses and the divisibility of easements because state laws seem to vary quite a bit in terms of what uses might be compatible with fiber optic cable transmission and i guess i'm trying to understand texas in missouri for example seem to say that unless you've got an easement for telephone or telecommunications then there's an additional unacceptable burden if let's say a gas pipeline company tries to allow a fiber optic cable communication communication cable being laid in that's not acceptable does federal law does the cable law overcome state law in those situations do you see the federal law you know as you know asking what's compatible under state law more from a physical standpoint well i think sort of tackling that issue in the reverse coming back to the language dedicated for compatible uses the only thing we focused on is the word dedicated and what that means we don't dispute that if it had been dedicated for purposes of the legal definition so opened up for the public at large if it had been done that way and we say it had not then this would be a compatible use but it hadn't been dedicated that so out we're not in a situation arguing over what's compatible with the district court did was they said we're going to interpret the word dedicated in this broader sense and then all the circuits that said when you do that when you adopt the broader definition and not the legal definition then you raise these takings issues and does there need to be compensation well the district court got around that issue by saying that because this wire didn't materially burden mr west property he wasn't entitled to any compensation and that's our nd issue which is materially burden is not the question when talking about takings and whether somebody is entitled to value in the red oh they say any physical invasion and only minimal impact can entitle someone to money under indiana state law which  constitutional issue and one which it does not interpret in this in the broader sense creates the constitutional issue for taking without just compensation ok thank you  not hope you can tell what the initial questions are going to concern i think i have a pretty good idea good morning in may please the core paul warner for the defendants is feels a little like deja vu because we were here about a year ago  and i imagine the parties can work with the court have that corrupted i don't know whether it's a clerical error or not the st problem is that our rules require it to be in the appendix to the opening brief and it was yesterday that there was not only a violation of our rules there is a false statement by mr cox that everything required by the rules have been included and then you paid no attention whatever to this yes your honor there were there was an oversight with respect to that that i believe that we can correct we limited liability companies with principal place of business in stamford connecticut i don't know how many times we have said that partnerships are not the same as corporations you're they don't have state citizenship in that sense it doesn't matter where their principal place of business is we need to know the names of every single member and partner and all their citizenship and i look at your supplemental jurisdictional statement and none of that instruction saying you got it wrong the st time do it right now and we had actually followed to file an amended statement as you know and we had actually sought for their guidance from the court on that because we weren't exactly sure what the issue was what i can tell you is the statement in our jurisdictional statement our brief related to the inside defendants and all of the other defendants should be they are not citizens of indiana and in fact we don't need to know where they are not citizens understood your honor what they are citizens of and we will draw the concludes under understand we need to know every single member or partner of the defendants if any of those is a partnership or an want non cooperation we need to know the name of every single member or partner and their citizenships down as many levels as it takes to get to the bob we understand your honor and  statement was inadequate do it right and then you do something that has no relation to the governing law under said your honor and finally is this anything other than an advisory opinion well we think it is your honor because in fact cox challenge to time work and insights and the other defendants trespass on his property and just to be clear and west i'm sorry a quest property to be clear the trespass concerns incites wire that is on the tip top of the tower on wes property so it is not the case that it is simply insights information that is being transmitted across the property insights wire is at the tip top of the tower and it serves both of utility purpose and a communications mr cox just said in response to my question that the complaint alleges that employees of charter or insight have entered the land to do things with respect to this wire is that true i believe that is true but in addition all right so how what's what the cable went to one side how does charter get the authority to do that what charges authority to do that under the charter inside has access and just piggybacked on an existing utility easement on wes property that fundamentally is what he's complaining about he's not simply complaining about as we understand it accessing his property to repair or maintain the wire on the tower the fundamental complaint concerns the existence of the tower itself as we explained in our brief west property is consumed by a large and historic utility easement that was granted from one public utility to another for the broad public purpose of providing utility services to the public at large insights use for communications purposes and the stringing of one wire at the top of the tower is fundamentally compatible with the use of that easement historically to provide utility services and therefore it's authorized by the cable act i do think they're still going to have i'm still not sure what the cable act is doing if the easement authorizes this the installation of this cable and it says it refers to light heat power telephone and or other purpose well this is pretty much in the category of either telephone and or other p instead teed up in our motion to dismiss the issue of insights rights under the cable act do you think you had to pay level gas an electric for access to these men do we have to not specialists in this for using the english language rather than made up things really help structures to follow what you're saying yes your honor just to speak generally it's the utility there is an agreement between the utility and insight concerning access to the utility structures that are own by utility so that if there is that agreement but no inside does not need to pay anyone to exercise its right under the cable act so do do do you have to i'm trying to understand how these negotiations work between the cable company in the electric company you have to pay them for access their structures yes but not for access to the easement kno they know the theory shirt just generally the there are lots of these agreements around the country there are green ones between the utility and the cable operator for access to the utilities structures for the cable company to string its wires cases where for example there's a gas pipeline that's buried underground and there's a cable company in one title destroying poles and wires across that well no there are entitled to use easements there for compatible purposes and of course you any kind is sufficient to authorize the cable companies to install and to access the easily well any is there for compatible purposes and that's an important qualifier but what congress was up to with section six  one was trying to clear the way for the plan the able by allowing them to go everywhere utilities are understand i understand but ok let me ask you the question that i was trying to ask mr cox and that has to do with variations in state law about the compatibility of different utilities within the scope of utility easements sure texas and missouri as i understand it has said in essence ok if you've got a telephone or telecommunications easement that's compatible but not if it's gas or water in the shark and this is the problem with the interpretation that west is pushing here because well is it you are you are you arguing that federal law for example and you want us to say that federal law is so broad for example that it would trump the limitations in texas or missouri yes federal law what congress was up to with us expressly trying to avoid cable operators having to go prosecute why should we say why should we use the extreme case here to decide that issue while this is the case before before the court i don't think that the court house to announce a particular broad holding to rule two to affirm the district court here because clearly when you look at the language of the evening and you look at the use which of course was doesn't really even challenge as being incompatible with the utility use is clearly within the scope of section six hundred and twenty one and you had asked earlier about the ambiguity of the statutory language and it would be appropriate to look to the legislative history of legislative history is related to the final act as an acted by congress and concerns specifically subsection eight to which this case arise under but i would also point the core to look to the determination of the f c c that had interpreted this language and of course that is the f c c so the statute speaks for itself it does insofar as it allows access to all existing compatible utility easements and to oss the language is clear on its face in the court can rely on the common meaning when congress intended to use it so clear that five other circuits wrote a very different very well they have they have looked at it very differently in a different context addressing a fundamentally different issue and we discussed those cases in our brief but to be sure to suggest it's not that easy understood your honor and but in those cases what the court needs to understand is the core of those courts were looking at cable operators who are seeking to do through section six hundred and twenty one dollars what congress did not permit them to do by enacting section six  dollars that is not this kind of case this is a traditional utility easement and whether you look at the common meaning or the more technical meaning if you look at the legislative history and if you look at the way the f c c has interpreted it as well as all other  responding to george hamilton's question i'll give you one other true you have no idea how rare that is york statute before the cable act was in place and what they said in the read of was in short when the character of the government action is a permanent physical occupation of property or cases uniformly have found a taking to the extent of the occupation without regard to whether the action achieves an important the public benefit or has only minimal economic impact on the owner so coming back to judge hamilton point about it being a razor thin wire again i don't think the extent of it is is of relevance the question under easement long if you're just talking about kind of there's no easement but we want to come in under federal law and install a wire on your property then that's loreto right correct ok so the state law and what they found the red are they they said they had to get compensation right and they got a dollar rent i don't remember what the amount that was a long remain and yeah so it's not necessarily a pot of gold at the end of the rainbow here but i guess my concern has more to do with state laws regarding easements and there are several military divisibility the ability of an easement holder to assign or delegate further rights to rd parties you've objected to that and i guess what we're i'm struggling a little bit with this is how state and federal law fit together here right and i understand that and my point earlier was we start with the word dedicated whether they gave the whole thing over and if you look at the original easement we talk about whether this was intended to be a broad sweeping public easement or whether it was private just for this one electrical energy issue which is what what judge easterbrook mentioned earlier but that that distinction  ruled on al warnell gases motion originally and found that the even that was ambiguous this is easement allows for crops to be grown by my client the fence buildings put up all those kinds of things it's ok thank you thank you very much we want parties to pile supplemental statements within fourteen days addressing three questions one is appellate jurisdiction but whether this is a final decision by the district court and perhaps you will conclude that you need to use some of those fourteen days persuade the district court to enter a final decision  the nd thing that needs to be addressed use subject matter jurisdiction we need from the parties but i assume principally from charter a complete listing of all of the partners and members all of their partners and members and so on all the way down the den to find their citizens and rd we need the parties to address the question what is the substantive claim under state  under this state's law as opposed to some potential others what is the claim under this state's law and why the communications act is relevant to that claim by west against charter these responses should be filed within fourteen get well letter or more a written order as well that's the gist of it and when those responses are received the case will be taken under