WASHINGTON — A fiber optic cable company attempting to avoid more than $1 million in payments to Metro argues in court filings that the transit agency cannot prove it owns all rights to the tunnels where fiber optic, cellphone and other cables are hung alongside the tracks.
Metro has leased the use of the tunnels for years to companies such as FiberLight LLC, and had attempted to use lease arrangements to implement cellphone service in tunnels several years ago until the collaboration among the wireless companies fell apart. A new cellphone service installation plan is underway that will add service in tunnels across the system in coming years.
FiberLight has refused to pay its bill for 2014, 2015 or 2016, claiming that Metro does not have the power to require companies that qualify as utilities under D.C. and Maryland’s public service commissions or Virginia’s State Corporation Commission to pay higher rates than local governments charge.
Instead, the company argues in some of its filings that it has the right to complete access to any public rights of way, whether the cables are going in at street level, above ground or below ground.
“WMATA has never demonstrated, by deed or other evidence of title, that it owns and has a right to lease the real and/or personal property in the rights of way occupied by FiberLight,” the complaint argues.
Metro cites the compact that established the transit agency as clear authority. The compact directed Metro to obtain the property for, build and operate the transit system, including controlling access.
Metro said it terminated the lease agreement with FiberLight last November after more than two years of back-and-forth. In December WMATA told the company that Metro would take control of the communications system and possibly cut off FiberLight’s service to its government and business clients including communications companies. Metro also triggered a part of the agreement requiring a plan to dismantle the system within six months. FiberLight says it still owns the system.
Despite having signed a lease agreement in 2006, FiberLight claimed in a lawsuit filed this fall that it only realized in 2014 that Metro tracks run below public streets, so it might have a right to use the tunnels without paying any lease fees — or at least by paying lower ones more similar to rates charged by the D.C. government that are about 90 percent lower.
“[The complaint] is a transparent attempt to avoid paying more than one million dollars in contractually-obligated license fees to the financially-strapped Washington Metropolitan Transit Authority,” Metro lawyers wrote in a response filed in January.
“By filing suit, FiberLight seeks to gain through litigation what it otherwise has no right to — the continued use of and access to WMATA’s facilities for free, indefinitely,” the motion argued.
FiberLight, a Georgia-based company, says it paid nearly $2.5 million in annual license payments between 2006 and 2013. Metro says in a series of responses and motions to dismiss the case that the company has refused to pay more than $1 million in additional bills since 2014.
The company says it does not contest Metro’s right to control access to the Metro system or to charge for Metro workers who escort work crews — only to the rate they are charged as part of the lease.
The two sides are scheduled to meet for settlement talks Wednesday.
FiberLight wants a federal judge to find that Metro has breached its lease agreement, that Metro cannot charge annual lease fees, that FiberLight must be allowed to access its fiber optic system for maintenance, and that Metro cannot take control of or interrupt the internet and other traffic traveling over the system.
Metro lawyers argued that in addition to other problems with the company’s argument, the case was filed too late — far beyond the three-year statute of limitations.
“FiberLight’s position is the epitome of self-contradiction: It is asking this Court to declare that WMATA had no right to lease access to its own system when it entered into the License Agreement, but at the same time, force WMATA to adhere to the provisions of that same License Agreement so that FiberLight can continue to enjoy the agreement’s benefits. To that end, FiberLight’s complaint serves as nothing more than a tool employed to create negotiating leverage for obtaining a less-expensive agreement to use WMATA’s System,” Metro lawyers argued last month.
“Far from being injured, FiberLight has benefitted enormously from its undisputed refusal to pay WMATA since 2014, by continuing to reap profits from its customers using the WMATA System, unencumbered by capital investments,” the Feb. 17 filing continued.
In separate documents, Metro argued that FiberLight has made money from its customers since 2014, while simply refusing to pay Metro.
“The spurious nature of the complaint is demonstrated in its internal inconsistency. FiberLight alleges that WMATA does not have the right to lease its conduit rights, yet it still appears to pursue a continued contractual relationship with WMATA, just at a lower rate of payment,” Metro argued.
