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Cynthia M. Currin is an attorney in private practice in Raleigh, NC.  She has served as counsel for electric utilities for over 31 years.  She is past President of the North Carolina Electric Membership Cooperative Counsel Association. She is a former member of the Board of Governors of the North Carolina Academy of Trial Lawyers ("NCATL"), a member of the NCATL Editorial Board, and past editor of NRECA’s Legal Reporting Service. She is a certified arbitrator and mediator in the state of North Carolina.

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September 2011 - Volume 13 - Issue 9

We report on a federal antitrust case for Oklahoma.  An electric cooperative, Kay Electric Cooperative, sought to supply electric service to a new jail facility located outside of the city limits of Newkirk, Oklahoma.  

However, Newkirk annexed the area and offered to provide electric service to the jail - along with sewage services.  The jail elected to buy electricity from the City of Newkirk.

Kay Electric sued Newkirk alleging that the City had engaged in unlawful "tying" - that the city had refused to provide any sewage services to the jail unless the jail also bought its electricity from Newkirk.

Newkirk argued that - as a municipality - it was immune from liability, citing to a United States Supreme Court case, Parker v. Brown.  Newkirk asserted that the Sherman Act did not require State actors to live by the same antitrust rules as everyone else.  

The Tenth Circuit Court of Appeals ruled that general municipal charters are never enough to trigger Parker protections and that Newkirk lacked antitrust immunity.

The Tenth Circuit explained that Newkirk had refused to provide sewage services to the jail unless the jail bought the City's electricity.  The Tenth Circuit colorfully stated:

"Finding themselves stuck between a rock and a pile of sewage, the operators of the jail reluctantly went with the City's package deal."

The Tenth Circuit noted that a state statute specifically entitled the electric cooperative to provide electric services in the annexed area - without Newkirk's consent, franchise, license, permit or other authority.                

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  • Rural electric cooperative sues City alleging City sought to impermissibly tie provisions of sewer service to provision of water and electric service in violation of Sherman Antitrust Act and State Antitrust statutes; Tenth Circuit reversed federal district court's dismissal of antitrust claims and remanded, finding City lacked antitrust "immunity."

  • Property owner brought trespass claims against utility alleging underground installation of fiber optic cable exceeded the scope of easement; Bankruptcy Court for the Southern District of New York found that installation of underground fiber optic cable constituted misuse of easement, rending utility liable for trespass.   

  • Lead lineman fired after apprentice lineman injured on job; Lineman brought ADEA claim and Title VII claim against electric cooperative; United States District Court for the Middle District of Florida granted dismissal of age discrimination claim, but denied dismissal of race discrimination claim, finding genuine issue of fact as to whether discriminatory intent existed; Summary judgment was precluded. 

  • Regulations - RUS.