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Docket No. 3:96cv381/LAC GULF POWER COMPANY, ALABAMA POWER COMPANY, an Alabama corporation,  a4et al.,` `  hhCq ` `  hhCqppPlaintiffs Appellants, ` `  hhCqppCrossAppellees, qversus \ UNITED STATES OF AMERICA, FEDERAL COMMUNICATIONS COMMISSION,  a4` `  hhC qppDefendants Appellees, ` `  hhCqppCrossAppellants.  ____________________________  W Appeals from the United States District Court  Yfor the Northern District of Florida _ ____________________________  a@!4\1 (September 9, 1999) ă  aT#4 xBefore EDMONDSON and CARNES, Circuit Judges, and WATSON*, SeniorJudge. _____________________  X|'4 xN*#XN\  PynXP#Honorable James L. Watson, Senior Judge, U.S. Court of International Trade, sitting by  Xe(4designation.#[\  P_P#  aX*4CARNES, Circuit Judge:#[\  P_P#"X*z+z+z+)"Ԍ a4ԙ#[\  P_P#   #[\  P_P#The plaintiffs!Gulf Power Co., Alabama Power Co., Georgia Power Co.,Mississippi Power Co., Ohio Edison Co., Duke Power Co., and Florida Power Corp.!are electric utility companies who brought suit against the United Statesand the Federal Communications Commission seeking a declaration that the1996 amendment to the Pole Attachment Act, as codified at 47 U.S.C.  224(f),is facially unconstitutional because it effects a taking of their property withoutan adequate process for securing just compensation, in violation of the FifthAmendment. The district court agreed that the amendment effected a taking ofproperty, but granted summary judgment in favor of the defendants afterconcluding the amendment did not deny the utilities an adequate process forsecuring just compensation. For the reasons set forth below, we affirm thedistrict courts judgment.  a41 I. BACKGROUND The plaintiffs, like other electrical utilities in this country, own vastnetworks of poles, ducts, conduits, and rightsofway which are used to supplyelectricity to consumers. Power lines are strung across public and private lands a@!4and millions of poles support those lines.X0Í ÍX0Í@! a#4#[\  P_P# ÍFor example, plaintiff Duke Power owns 1.8 million distribution poleslocated on 74,134 miles of public and private rightsofway. Ducts and conduits!usuallyunderground pipes encased in concrete!house electric conductors. Although the"T#z+))"" utilities were able to negotiate privately with some landowners to secure rightsofway, they also received substantial assistance from state governments inacquiring their networks. States routinely delegated to utilities their sovereignpower of eminent domain so that they could acquire the needed rightsofway. In addition, states allowed utilities to locate their network facilities, e.g., poles,on public rightsofway. As with electric utilities, cable television companies must have a physicalcarrier for their cables in order to supply television signals to their customers. Because underground installation of the necessary cables is impossible orimpracticable[,] [u]tility company poles provide . . . virtually the only practical a4physical medium for the installation of television cables. FCC v. Florida Power a4Corp., 480 U.S. 245, 247, 107 S. Ct. 1107, 1109 (1987). With the advent ofcable television in the 1950's, it became common practice for cable companiesto lease access to utility companies poles. Over time, however, cable companies grew upset with the access rates andcomplained to Congress that utilities were exploiting their monopoly position a@!4by engaging in widespread overcharging. Id. at 247, 107 S. Ct. 110910. Congress responded in 1978 by enacting the Pole Attachments Act, which wascodified at 47 U.S.C.  224. In that act, Congress empowered the FederalCommunications Commission ( FCC), in those states in which access rates"|'z+))&" were not already regulated, to determine "just and reasonable" rates a utilitycould charge cable companies for access to its poles, ducts, conduits, and rights a(4ofway. See 47 U.S.C.  224(b). Congress restricted the FCC, however, tosetting a rate within a statutorily defined range of minimum to maximum rates. aP4See 47 U.S.C.  224(d)(1).X0ÍX0Ín P a 4#[\  P_P# ÍSection 224(d)(1) provides: [a] rate is just and reasonable if it assures autility the recovery of not less than the additional costs of providing poleattachments, nor more than an amount determined by multiplying the percentageof the total usable space, or the percentage of the total duct or conduit capacity,which is occupied by the pole attachment by the sum of the operating expensesand actual capital costs of the utility attributable to the entire pole, duct, conduit,or rightofway. 47 U.S.C.  224(d)(1). As the Supreme Court has explained, [t]he minimum measure is thus equivalent to the marginal cost of attachments,while the statutory maximum measure is determined by the fully allocated costof the construction and operation of the pole to which the cable is attached. aN4FCC v. Florida Power Corp. 480 U.S. at 253, 107 S. Ct. at 1113.  Significantly, the Pole Attachments Act, asoriginally enacted in 1978, did not require a utility to provide cable companiesaccess to its property. Instead, it provided that if a utility voluntarily chose toprovide access, the rate charged for that access was subject to FCC regulation. Things stayed that way until 1996, when telecommunication carriersjoined cable companies in demanding a right of access to utilities networks ofpoles, ducts, conduits, and rightsofway. Telecommunication carriers wereinterested in using wire communications to carry their signals and, like cablecompanies, needed a physical carrier for their wires. Congress responded tothese demands by amending the Pole Attachments Act as part of the" z+))" Telecommunications Act of 1996. For the purposes of this case, the mostsignificant amendment is a mandatory access provision which provides that a"utility shall provide a cable television system or any telecommunications carrierwith nondiscriminatory access to any pole, duct, conduit, or rightofway ownedor controlled by it." 47 U.S.C.  224(f)(1). The only exceptions to a utilitysmandatory obligation to provide access are where there is insufficient capacity ax 4or some safety, reliability, or other engineering problem. See 47 U.S.C. 224(f)(2). Although Congress amended the Pole Attachments Act to require utilitiesto provide access to their property, it left intact the FCCs authority to determinethe compensation a utility is entitled to receive for providing that access. Hence, as before, the FCC determines the compensation a utility may receive forproviding access by setting a just and reasonable rate within the range of a4minimum to maximum rates Congress set forth in the ActX0ÍX0Í a4#[\  P _P# ÍFor convenience, we will hereinafter use the term Act to refer to the PoleAttachments Act as amended in 1996.; 47 U.S.C.  224(d)describes the range of rates for cable companies access, while 47 U.S.C. 224(e) describes the range of rates for telecommunication carriers access. The FCCs rate order, however, is not final. If a utility believes the rateset by the FCC fails to provide adequate compensation, it may seek relief by"T#z+))""  a4appealing directly to a United States Court of Appeals. See 47 U.S.C.  402(a). Among other things, the court of appeals is empowered to enter a judgmentdetermining the validity of, and enjoining, setting aside, or suspending, in wholeor in part the FCCs order. 28 U.S.C.  2349(a). As mentioned earlier, the plaintiffs are seven electric utility companies.  ad 4Each falls within the Acts definition of a utilityX0ÍX0ÍWd  a 4#[\  P _P# ÍThe Act defines utility as any person who is . . . an electric . . . publicutility, and who owns or controls poles, ducts, conduits, or rightsofway used inwhole or in part, for any wire communications. 47 U.S.C.  224(a).W and is therefore required toprovide cable companies and telecommunication carriers access to its poles,ducts, conduits, and rightsofway under the Acts mandatory access provision.  a4See 47 U.S.C.  224(f). The plaintiffs brought this suit in federal district courtagainst the United States and the FCC (the defendants) seeking a declarationthat the Acts mandatory access provision is facially unconstitutional because itconstitutes a taking of property without an adequate process for securing justcompensation, as required by the Fifth Amendment. They also sought topermanently enjoin and restrain the defendants from enforcing the mandatoryaccess provision. After the plaintiffs filed suit, the Association for LegalTelecommunication Services, which is a nonprofit, national trade associationrepresenting telecommunications companies, and American Communication "T#z+))"" defendants. In addition, several national and state cable television associationsparticipated as amici curiae supporting the defendants. The plaintiffs, defendants, and intervenors all moved for summaryjudgment. The district court agreed with the plaintiffs that the Acts mandatoryaccess provision effected a taking of property under the Fifth Amendment. However, it concluded the plaintiffs facial challenge failed because the Actprovided an adequate process for securing just compensation for that taking. Accordingly, the district court denied the plaintiffs' motion for summaryjudgment but granted the defendants' and intervenors' motions for summaryjudgment. The plaintiffs appealed, contending that the district court erred in notfinding that the Acts mandatory access provision was unconstitutional. Thedefendants crossappealed the courts determination that the Acts mandatoryaccess provision effected a taking of property.  a4^; II. DISCUSSION ă The plaintiffs contention that the Acts mandatory access provision isfacially unconstitutional requires us to address the following two issues. First,does the Acts mandatory access provision effect a taking of property? Second,if it does, is an adequate process available to a utility to secure just ah%4compensation for that taking? We address each issue in turn, applying a de a|'4novo standard of review. #[\  P _P#See, e.g., Rodriguez ex. rel. Rodriguez v. United"|'z+))&"  a4States, 169 F.3d 1342, 1346 (11th Cir. 1999) (de novo standard applies todetermination of a statutes constitutionality).#[\  P _P# In addition, we note that becausethe plaintiffs are bringing a facial challenge to the Act, they must #[\  P_P#establish that a<4no set of circumstances exists under which the Act would be valid. United aP4States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987) (emphasis ad 4added). See also New York State Club Assn, Inc. v. City of New York, 487U.S. 1, 11, 108 S. Ct. 2225, 2233 (1988) ( to prevail on a facial attack theplaintiff must demonstrate that the challenged law . . . could never be applied in a4a valid manner.) (quotation and citation omitted); Jacobs v. The Florida Bar, 50F.3d 901, 906 n.20 (11th Cir. 1995) ( [w]hen a plaintiff attacks a law facially,the plaintiff bears the burden of proving that the law could never beconstitutionally applied.)#[\  P_P#   cA. THE ACTS MANDATORY ACCESS PROVISION EFFECTS A TAKING  a4DOF PROPERTY А a4\In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164 (1982), the Supreme Court considered whether a statute which requiredlandlords to permit permanent, physical occupation of their property by cablecompanies constituted a taking. The Court held that it did and, in doing so,announced the following takings rule: [A] permanent physical occupationauthorized by government is a taking without regard to the public interests that a(4it may serve. Id. at 426, 102 S. Ct. at 3171. Among other arguments the Court"(z+))'" rejected in announcing that rule was the argument that the statute was merely a a4 permissible regulation of the use of real property. Id. at 439, 102 S. Ct. at3178. The Court held that although property is subject to broad regulatorypower, a regulation becomes a taking when the government authorizes aP4permanent physical occupation by a third party. Id. at 43940, 102 S. Ct. at317879.  ax 4We agree with the district court that Loretto dictates the conclusion thatthe Acts mandatory access provision, 47 U.S.C.  224(f), effects a taking of autilitys property. Under  224(f), a utility has no choice but to permit a cablecompany or telecommunication carrier to permanently occupy physical space on a4its poles, ducts, conduits and rightsofway. See 47 U.S.C.  224(f)(1) ( [a] a4utility shall provide a cable television system or any telecommunication carrier a4with nondiscriminatory access to any pole, duct, conduit, or rightofway ownedor controlled by it.") (emphasis added). Such a permanent, physical occupation a4of property falls squarely within the Loretto rule.  a,4Our conclusion in that regard is consistent with FCC v. Florida Power a@!4Corp., 480 U.S. 245, 107 S. Ct. 1107 (1987), in which the Supreme Court aT#4unanimously reversed this circuits holding in Florida Power Corp. v. FCC, 772 ah%4F.2d 1537 (11th Cir. 1985), that the pre1996 version of this Act effected a a|'4taking of property under Loretto. In reaching that result, the Supreme Court"|' z+))&"  a4stressed that unlike the statute in Loretto where the landlord was required tosubmit to permanent physical occupation, the pre1996 version of the Act did a(4not require a utility to give a third party access to its property. Without the a<4 element of required acquiescence, there was no taking under Loretto. FCC v. aP4Florida Power Corp., 480 U.S. at 252, 107 S. Ct. at 1112. The Court went on ad 4to note, however, that it was not deciding what the application of [Loretto] ax 4would be if the FCC in a future case required utilities, over objection to enter a4into . . . pole attachment agreements. Id. at 25152 n. 6, 107 S. Ct. at 111112n.6. Today, that future case is before us: the element of requiredacquiescence lacking in the pre1996 version the of the Act is now present in 224(f). Because  224(f) requires a utility to acquiesce to a permanent, physicaloccupation of its property, we conclude that the Acts mandatory accessprovision effects a per se taking of a utilitys property under the FifthAmendment.  a4We are unconvinced by the defendants attempt to distinguish Loretto. Incontending the mandatory access provision does not effect a taking, thedefendants do not deny that  224(f) compels a utility to submit to a permanent,physical occupation of its property. Instead, their primary contention is thatthere is no taking because the utilities covered by the Act, including theplaintiffs, never had an absolute right to exclude permanent, physical occupation"|' z+))&" of their poles, ducts, conduits, and rightsofway where that permanentoccupation is for a public purpose authorized by the sovereign. The defendants argument in support of this contention that the utilitiesbundle of rights never included the power to exclude, runs as follows. Utilitiesobtained the rightsofway on which they constructed their poles, ducts, and ad 4conduits via the eminent domain power which states had conferred upon them.X0ÍX0Í<d  a 4#[\  P_P# ÍThe defendants concede some of the rightsofway were obtained withoutresort to eminent domain, but argue these were acquired in the shadow ofeminent domain because private parties knew that utilities could resort toeminent domain if their efforts to negotiate an agreement failed. So, we shouldtreat all the rightsofway as though obtained through the use of eminentdomain, the defendants reason. Necessary to the utilities' ability to obtain property via eminent domain was thata public purpose was being served. That is so because private property may a4only be taken under the eminent domain power for a public use. See, e.g., a4Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 245, 104 S. Ct. 2321, 2331(1984). Because the utilities took the property with the understanding that theywould have to put it to a public use, they were necessarily on notice that, in thefuture, the sovereign could require them to allow permanent occupation of their a4property by another entity also serving the public interest.X0ÍX0Í\( a$4#[\  P_P# ÍIn addition, the defendants argue that the Acts provision for payment to autility for the permanent, physical occupation of its property somehow makesthat occupation less of a taking. Although the fact of payment is, of course,relevant to the just compensation issue, we fail to see how it makes the taking"'z+))'" any less a taking. By analogy, a tort is not any less a tort because some a4compensation will be paid for the injury suffered. \" z+))V"ԌWe find that argument unpersuasive. The Supreme Court has expresslyrecognized that the fact property was taken for a public use to begin with doesnot mean that it may be taken again for another public use without the payment a<4of just compensation to its owner. In Western Union Telegraph Co. v. aP4Pennsylvania R.R. Co., 195 U.S. 540, 573, 25 S. Ct. 133, 142 (1904), theSupreme Court stated: The right of way of a railroad is property devoted to apublic use, and . . . as such is subject, to a certain extent, to state and Federalcontrol. . . . But it has always been recognized . . . that a railroad right of wayis so far private property as to be entitled to that provision of the Constitutionwhich forbids its taking, except under the power of eminent domain and uponpayment of [just] compensation. The Court has also noted that the propertyof a public utility, although devoted to the public service and impressed with apublic interest, is still private property, and neither the corpus of that propertynor the use thereof constitutionally can be taken for a compulsory price which a4falls below the measure of just compensation. United Rys. & Elec. Co. v. a,4West, 280 U.S. 234, 249, 50 S. Ct. 123, 125 (1930), overruled on other grounds a@!4by, Federal Power Commn v. Hope Natural Gas Co., 320 U.S. 591, 64 S. Ct.281 (1944). "T# z+))""ԌConsistent with these principles, we conclude that the fact a utility gainedits property knowing it would be subject to extensive regulation for the publicuse does not means its property may be taken for a public purpose withoutpayment of just compensation, however laudable that public purpose might be.  aP4See also GTE Northwest, Inc. v. Public Utility Commission, 900 P.2d 495, 504(Or. 1995) (en banc) ( [t]he facts that an industry is heavily regulated, and thata property owner acquired the property knowing that it is heavily regulated, donot diminish a physical invasion to something less than ed his property forpublic use should henceforth be on notice that the sovereign can authorizepermanent occupation of his property without payment of just compensation hasit backwards. A property owner is entitled to expect that the property itacquired via eminent domain, and paid just compensation for, came with theright all property has ! not to be subject to governmentcoerced, permanentphysical occupation without just compensation. We also find unpersuasive the three arguments raised by the amici insupport of the defendants position that the mandatory access provision does noteffect a taking of property. First, the amici argue the mandatory accessprovision should be viewed merely as part of Congress broad power to regulateproperty being used for the public interest. Because a utilitys rightsofway areregularly used for serving the public, a utility may not exclude others whom"|'z+))&" Congress has determined require access, amici argue. That argument fails a4because it ignores the Loretto rule that [a] permanent physical occupation a(4authorized by government is a taking without regard to the public interests that a<4it may serve. Loretto, 458 U.S. at 426, 102 S. Ct. at 3171 (emphasis added).  aP4Next, amici point out that the Supreme Court in Duquesne Light Co. v. ad 4Barasch, 488 U.S. 299, 307, 109 S. Ct. 609, 615 (1989), recognized that autility has a partly public, partly private status. That status, they argue,distinguishes a utility from the purely private property owner who suffered the a4taking in Loretto. Because a utility has a partly public status, the argumentgoes, a utility lacks a right to exclude others whom Congress has determined a4must have access to serve the public. But Duquesnes discussion of utilities wasnot in the context of a takings case dealing with the permanent occupation of a4property. Nothing in Duquesne suggests a utilitys property is less subject toprotection against permanent, physical occupation than anyone elses property.  a4It is not. Put differently, we do not believe that Duquesne carved out an a,4exception to the Loretto rule for the property of utilities. Third, amici characterize the mandatory access provision as a simpleregulatory condition designed to prevent utilities from exercising monopolycontrol over their network of poles, ducts, conduits, and rightsof way, andwhich is thereby intended to promote the Telecommunications Act of 1996's"|'z+))&" general goal of fostering competition in the communications market. Such aregulation is particularly necessary, they say, because the TelecommunicationsAct of 1996, among its other provisions, made it easier for electric utilities toenter and compete in the communications market. This argument is meritless. Characterizing the mandatory access provision as a regulatory condition, evenone allegedly designed to foster competition, cannot change the fact that iteffects a taking by requiring a utility to submit to a permanent, physicaloccupation of its property. However laudatory its motive, Congress power toregulate utilities does not extend to taking without just compensation the right ofa utility to exclude unwanted occupiers of its property. Finally, we reject the intervenors argument that the mandatory accessprovision is not a taking because electric utilities, such as the plaintiffs, couldavoid the effect of the Act by refraining from using their poles, ducts, conduits,and rightsofway for wire communications. This argument is made possiblebecause the Acts definition of a utility subject to the mandatory accessprovision covers only electric utilities who use their poles, ducts, conduits, and a@!4rightsofway for wire communications. See 47 U.S.C.  224(a). We see the aT#4point, but we think this argument is foreclosed by Loretto. The protectionagainst a permanent, physical occupation of ones property does not hinge on a|'4the choice of use for that property. See Loretto 458 U.S. at 439 n.17, 102 S."|'z+))&" Ct. at 3178 n.17 ( A landlords ability to rent his property may not beconditioned on his forfeiting the right to compensation for a physical occupation. [This] broad usedependency argument proves too much. . . . The right of aproperty owner to exclude a strangers physical occupation of his land cannot beso easily manipulated.). Put another way, the bundle of rights that a utility hasin its property includes the right to permit its use for wire communications, andexercise of that right may not be conditioned on being forced to submit to apermanent, physical occupation of its property without payment of justcompensation. In sum, we agree with the district courts holding that the mandatoryaccess provision effects a per se taking of property under the Fifth Amendment,which leads us to the issue of whether the Act provides an adequate process forobtaining just compensation for the taking.   qB. THE ACT PROVIDES AN ADEQUATE PROCESS FOR OBTAININGJUST COMPENSATION FOR THE TAKING EFFECTED BY THE   MANDATORY ACCESS PROVISIONА\The fact that the Acts mandatory access provision effects a taking ofproperty does not, by itself, make it unconstitutional. The Fifth Amendmentdoes not proscribe the taking of property; it proscribes taking without just ah%4compensation. Williamson County Regional Planning Comn v. Hamilton Bank,473 U.S. 172, 194, 105 S. Ct. 3108, 3120 (1985). The Supreme Court has"|'z+))&" made the requirements clear: [A]ll that is required is that a reasonable, certain,and adequate provision for obtaining compensation exist at the time of thetaking. If the government has provided an adequate process for obtainingcompensation, and if resort to that process yields just compensation, then the aP4property owner has no claim against the Government for a taking. Id. at 19495, 105 S. Ct. at 312021 (internal citation and quotations omitted). The plaintiffs contend the Act fails to provide a constitutionally adequateprocess for obtaining just compensation, for two reasons. First, they argue theprocess is constitutionally inadequate because it violates separation of powerprinciples by delegating to the FCC, instead of a court, the initial task ofdetermining the compensation a utility receives. Second, they argue the Actsprovision limiting the FCC to awarding a just and reasonable rate within the a4range of rates set by Congress, see 47 U.S.C.  224(b), will prevent a utilityfrom receiving the constitutionally required rate of just compensation. Weaddress each argument in turn.  a,41. Whether the Act Violates Separation of Power Principles In support of their argument that the Acts process for providingcompensation violates separation of power principles, the plaintiffs rely ah%4primarily on Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622 (1893). In that case, the Supreme Court had before it a statute in which"|'z+))&" Congress had imposed limits on the amount of compensation a property ownercould receive after Congress had authorized the taking of his property. Theproperty owner contended that under Congress limitations, he had not receivedjust compensation. The Supreme Court agreed, rejecting the notion Congresscould both authorize a taking and conclusively determine the level of justcompensation due. The Court stated: XBy this legislation [C]ongress seems to have assumed the right todetermine what shall be the measure of compensation. But this is ajudicial, and not a legislative, question. The legislature may determinewhat private property is needed for public purposes; that is a question of apolitical and legislative character. But when the taking has been ordered,then the question of compensation is judicial. It does not rest with thepublic, taking the property, through [C]ongress or the legislature, itsrepresentative, to say what compensation shall be paid, or even what shallbe the rule of compensation. The [C]onstitution has declared that justcompensation shall be paid, and the ascertainment of that is a judicialinquiry.(#  aT#4Id. at 327, 13 S. Ct. at 626. The Court went on to note that [t]he right of thelegislature . . . to apply the property of the citizen to the public use, and then toconstitute itself the judge of its own case, to determine what is the just"|'z+))&" compensation it ought to pay therefor, . . . cannot for a moment be admitted or a4tolerated under our [C]onstitution. Id. at 32728, 13 S. Ct. at 627 (internalquotation and citation omitted).  a<4According to the plaintiffs, Monongahela requires us to hold that the Actfails to provide a utility an adequate process to obtain just compensation for thetaking of its property. That is so, they argue, because under the Act, the FCChas the initial task of determining the compensation a utility receives for thetaking of its property by setting a just and reasonable rate within the range ofminimum to maximum rates established by Congress. The plaintiffs assert thatsuch a legislative delegation of power to the FCC usurps their right, as a4recognized in Monongahela, to a judicial ascertainment of just compensation. The plaintiffs also seek to support their position by citing our opinion in a4Florida Power Corp. v. FCC, 772 F.2d 1537 (11th Cir. 1985), a decision which a4was reversed by the Supreme Court, see, FCC v. Florida Power Corp., 480 U.S. a4245, 107 S. Ct. 1107 (1987). As mentioned earlier, we held in Florida Powerthat an FCC rate order issued pursuant to the pre1996 version of the Act a@!4constituted a taking under Loretto. That holding led us to also address whetherthe utility had received just compensation for that taking. The pre1996 versionof the Act was identical to the current Act insofar as it assigned to the FCC the"h%z+))$" initial task of setting the compensation a utility received for providing access toits property.  a(4We said in Florida Power that this process was unconstitutional under a<4Monongahela because it does not allow for a judicial determination of what aP4constitutes just compensation. Id. 772 F.2d at 1546. It was our view at thetime that Congress had prescribed in the Act a binding rule in regard to theascertainment of just compensation and therefore had usurped what has long a4been held an exclusive judicial function. Id. The plaintiffs concede that in light a4of the Supreme Courts reversal of our Florida Power decision, our statementsconcerning the adequacy of the process for obtaining just compensation are not a4binding under the prior panel precedent rule.X0ÍX0Íu ab4#[\  P_P# ÍThe plaintiffs are correct to concede that our Florida Power decision is notbinding. For any part of a decision to be binding under the prior panelprecedent rule, the decision must not have been vacated or reversed by theSupreme Courtit must have survived the possibility of Supreme Court review. Our statements about the constitutional adequacy of the process for obtainingjust compensation do not meet that test, because the Supreme Court had nooccasion to address the issue in light of its holding that the pre1996 version of a4 224 did not result in a taking of a utilitys property. See FCC v. Florida a4Power Corp., 480 U.S. at 254 n.8, 117 S. Ct. at 1113 n.8 ( Our disposition ofthe takings question makes it unnecessary to review on the merits the Court ofAppeals holding that Congress may not establish standards under which theinitial determination of compensation will be made by an administrativeauthority subject to final judicial review.). u Nonetheless, they argue ourreasoning in that prior decision supports their position that the Acts process forproviding just compensation is constitutionally inadequate."z+))"ԌAlthough the concerns raised by the plaintiffs and discussed in our a4opinion in Florida Power merit consideration, we are unpersuaded that the Actsprocess for providing a utility with compensation amounts to an impermissibleinvasion of the judicial branchs realm. True, it is ultimately the responsibilityof the judicial branch to ensure that the compensation awarded for a taking ad 4satisfies the constitutional standard of just compensation. See Monongahela, 148U.S. at 327, 13 S. Ct. at 626. Thus, if Congress (or the executive branch)attempts to impose a limitation on the measure of compensation for a taking, acourt must evaluate that standard to see if it is consistent with theconstitutionally mandated level of just compensation, and a court is not bound tofollow that standard in making judicial determinations of the compensation dueif the standard fails to secure just compensation. However, the fact that our constitutional scheme dictates that the judicialbranch is entrusted with the ultimate responsibility for ensuring that justcompensation is awarded does not mean the other branches of government mustbe excluded from the process of determining the proper level of just a@!4compensation. Nothing in Monongahela or any other Supreme Court precedentcompels such a conclusion. To the contrary, the Supreme Court has stated that all that is required is that a reasonable, certain, and adequate provision forobtaining compensation exist at the time of the taking. If the government has"|'z+))&" provided an adequate process for obtaining compensation, and if resort to thatprocess yields just compensation, then the property owner has no claim against a(4the Government for a taking. Williamson County, 473 U.S. at 19495, 105 S.Ct. at 312021 (citation and quotation omitted). While a process in which thejudicial branch does not make the final determination of what constitutes justcompensation may be constitutionally inadequate, we see no constitutionalproblem with a process that employs an administrative body, such as the FCC,to determine just compensation in the first instance. Indeed, use of anadministrative body with some technical expertise over the subject matter of theproperty to be valued likely will aid the judiciary in arriving at a more reliabledetermination of the proper level of just compensation. So long as anadministrative bodys decision concerning the level of compensation owed for ataking remains subject to judicial review to ensure just compensation, use of anadministrative body can be a valid part of provid[ing] an adequate process for a4obtaining compensation. Id.  a,4Our conclusion that an administrative body may participate in the processof determining just compensation where its decision is subject to judicial review aT#4is consistent with the Seventh Circuits decision in Wisconsin Central Limited v. ah%4Public Service Commission of Wisconsin, 95 F.3d 1359, 1369 (7th Cir. 1996). In that case, some railroads argued that the procedures Wisconsin had provided"|'z+))&" for obtaining just compensation for a taking were constitutionally inadequatebecause the Wisconsin legislature had authorized an administrative body to setthe level of compensation in the first instance. But the administrativedetermination was subject to judicial review in the Wisconsin courts. TheSeventh Circuit decided that: The railroads are quite correct that a decisionconcerning the just compensation owed one whose property is taken is the ax 4province of judicial not legislative determination. However, as Williamson a4County illustrates, this requirement is satisfied by the availability of judicialreview. The Fifth Amendment does not require a judicial determination of justcompensation in the first instance on each occasion of a taking of private a4property. Id. at 1369. Accordingly, we conclude that the fact that the Act assigns to the FCC, anadministrative body with some special expertise in the technical aspects of poleattachments, the task of initially determining a utilitys compensation does not,by itself, render the process for providing compensation constitutionallyinadequate. The more relevant issue is whether the judicial review of the FCCsdetermination that is available ensures that the final and conclusivedetermination of the just compensation owed to a utility is made by the judicialbranch. We turn now to that issue."h%z+))$"ԌA utility that believes the rate ordered by the FCC fails to provide justcompensation for the taking of its property may appeal the FCCs rate order a(4directly to a federal appeals court. See 47 U.S.C.  402(a) (providing generallyfor appeals from FCC orders). The appeals court has jurisdiction to enter ajudgment concerning the validity of the FCCs order and may enforce its ad 4judgment with an injunction. See 28 U.S.C.  2342(1) ( The court of appeals .. . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part),or to determine the validity of . . . all final orders of the [FCC] made reviewableby [47 U.S.C.  402(a)]; 28 U.S.C.  2349(a) ( The court of appeals . . . hasexclusive jurisdiction to make and enter . . . a judgment determining the validityof, and enjoining, setting aside, or suspending, in whole or in part, the order ofthe agency.). In addition, 5 U.S.C.  706(2)(B) provides: XTo the extent necessary to decision and when presented, thereviewing court shall decide all relevant questions of law, interpretconstitutional and statutory provisions, and determine the meaning a,4or applicability of the terms of an agency action. The reviewing a@!4court shall . . . hold unlawful and set aside agency action, findings, aT#4and conclusions found to be . . . contrary to constitutional right, ah%4power, privilege, or immunity . . . "h%z+))$"Ԍ(emphasis added). The issue of whether the rate ordered by the FCC provides autility just compensation for a taking effected by the Act is, of course, aconstitutional issue. Thus, the federal appeals court to which an appeal is takenhas jurisdiction to decide that an FCC rate order is constitutionally invalidbecause it does not provide just compensation. Under the statutory scheme, it is ad 4the judicial branch which will, consistent with Monongahela, make the ultimatedetermination of just compensation due for a taking of a utilitys property underthe Act. To be sure, an appellate court is not the usual forum in which factualissues such as the proper level of just compensation are resolved, and is not theforum we would have chosen. But Congress has the right to specify the processso long as it is adequate for a judicial determination of just compensation. Anappellate court has at least five means at its disposal to gather the informationneeded to determine just compensation, and those means are sufficient toprovide a utility with a full and fair opportunity to submit for judicialconsideration all relevant evidence bearing on the question of just compensation. The five means are as follows: X1) The court may rely on the evidentiary submissions in the recordfrom the FCC proceeding when they are sufficient for the task. "h%z+))$"ԌX2) If the court determines the record from the FCC proceeding isinsufficient, it may remand the case and direct the FCC to a(4supplement the record. See 28 U.S.C.  2347(c) (the court ofappeals may order . . . additional evidence . . . to be taken by theagency where requested to do so by one of the parties).  X3. The court may transfer the case to the district court for a full ax 4hearing pursuant to 28 U.S.C.  2347(b)(3).X0ÍX0ÍFx  a4#[\  P_P# ÍWe note that the option of transferring the case to the district court for ahearing is available only when the FCC has not conducted a formal hearing a&4prior to issuing its rate order. See 28 U.S.C.  2347(b)(3). Of course, if theFCC has conducted a hearing, we would expect the record available to theappellate court to be more complete and hence there would be less need fortransferring the case to the district court for a hearing. Any incompleteness inthe FCC hearing record could also be rectified by a remand to the FCC.  X4. The court may appoint a special master pursuant to F.R.A.P. 48to hold hearings and gather any additional information the courtneeds to decide the just compensation issue.  X5. The court may fashion any other "appropriate modes of procedure" togather the evidence it needs to conduct its factual inquiry pursuant to its a4authority under the All Writs Act, 28 U.S.C  1651. See Harris v. Nelson,394 U.S. 286, 299, 89 S. Ct. 1082, 109091 (1969) (recognizing thatcourts may rely on their authority under the All Writs Act "in issuingorders appropriate to assist them in conducting factual inquiries.").(#",z+))"ԌDepending on the particular facts of a case, one or some combination of thosefive means will provide the appellate court with a sufficient basis to determinethe proper level of just compensation owed to a utility. That part of the processis adequate. Once the appellate court has made a determination of the proper level ofjust compensation owed, it is positioned to resolve a utilitys appeal of the FCCrate order and ensure that the utility does not suffer a taking without justcompensation. If the court, based on its determination of the proper level of justcompensation, concludes the rate awarded by the FCC provides just a4compensation, then it will simply affirm the FCCs rate order. See Ruckelshaus a4v. Monsanto Co., 467 U.S. 986, 1013, 104 S. Ct. 2862, 2878 (1984) (wherestatutory arbitration procedure for providing compensation for a taking ofproperty results in payment of just compensation, property owner has no claimagainst the government for a taking without just compensation).  a4#[\  P_P#On the other hand, if the court determines the FCC rate fails to providejust compensation and the rate which would do so falls within the range of ratesspecified in 47 U.S.C.  224(d)(e) which the FCC is authorized to award, thenthe court will set aside the FCC rate order and order (or as the relevant statutoryprovision says, enjoin) the FCC to enter a new rate order designed to providethat the utility receives just compensation calculated from the date the cable"|'z+))&" company or telecommunication carrier first obtained access under the Acts a4mandatory access provision. See 28 U.S.C.  2349(a) ( The court of appeals . .. has exclusive jurisdiction to make and enter . . . a judgment determining thevalidity of, and enjoining, setting aside, or suspending, . . the [FCCs] order . . . aP4.)#[\  P_P# Directing the FCC to issue a rate order providing that a utility receive thejust compensation rate from the date it was first required to provide access underthe mandatory access provision will ensure a utility receives just compensationboth prospectively and in the period prior to the courts determination of the just a4compensation rate. Cf. Multimedia Cablevision, Inc. v. Southwestern Bell Tel. a4Co., 11 FCC Rcd. 11202, 11216 (1996) (in the event the recomputed rates arein excess of that paid by [the attacher], we require [the attacher] to pay thedifference, with interest, to [the utility].). Such an order ensures that a utilityis not forced to continue to provide mandatory access to its property unless it a4receives just compensation, as determined by a court, for the taking. See a4Williamson County, 473 U.S. at 194, 105 S. Ct. at 3120 ( [t]he FifthAmendment does not proscribe the taking of property; it proscribes taking a@!4without just compensation.)#[\  P_P# Nonetheless, the plaintiffs contend that even if the court can guarantee theaward of just compensation in some cases, there might be cases in which itcould not do so. Specifically, they raise the possibility that the just"|'z+))&" compensation rate might exceed the statutory maximum rate, as defined in 47U.S.C.  224(d)(e), which the FCC is authorized to award. Were that to occur,they assert that the court could not order the FCC to award a rate above themaximum rate specified in the Act and that a utility would therefore not receivethe just compensation rate. Accordingly, they argue that because the processfails to ensure that a utility receives just compensation in those situations, theAct is unconstitutional. That argument does not fit in this lawsuit, because this is a facialchallenge. A facial challenge to a legislative Act is, of course, the mostdifficult challenge to mount successfully, since the challenger must establish that a4no set of circumstances exists under which the Act would be valid. United a4States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987) (emphasis a4added). See also New York State Club Assn, Inc. v. City of New York, 487U.S. 1, 11, 108 S. Ct. 2225, 2233 (1988) ( [t]o prevail on a facial attack theplaintiff must demonstrate that the challenged law . . . could never be applied in a,4a valid manner.); Jacobs v. The Florida Bar, 50 F.3d 901, 906 n.20 (11th Cir.1995) ( [w]hen a plaintiff attacks a law facially, the plaintiff bears the burden ofproving that the law could never be constitutionally applied.) The plaintiffs have not carried that burden in this case. As we havealready discussed, there are a readily identifiable set of circumstances in which"|'z+))&" the Act provides a constitutionally adequate process for ensuring a utility a4receives just compensation. #[\  P_P#Specifically, where the court determines that therate awarded by the FCC provides just compensation, the court can affirm theFCC rate order. Conversely, if the FCC rate does not provide justcompensation, the court can direct the FCC to enter a new order providing thejust compensation rate, at least in those circumstances where the justcompensation rate falls within the statutory range specified in 47 U.S.C.  a4224(d)(e).#[\  P_P# Even if the plaintiffs are correct in stating that the court could not directthe FCC to award a rate exceeding the statutory maximum an issue we neednot decide here the plaintiffs have identified, at most, one hypothetical set ofcircumstances in which the Act would not provide an adequate process to ensurea utility receives just compensation. But conjuring up one hypothetical set ofcircumstances in which the Act could operate in an unconstitutional manner does a4not suffice to establish that the Act is facially unconstitutional.X0ÍX0Ío Z P a4#[\  P_P# ÍWe use the word hypothetical because the plaintiffs have not pointed toany evidence demonstrating that the just compensation rate will ever exceed thestatutory maximum rate. Their failure to do so is significant for another reason a"4as well. Three Supreme Court Justices have recently questioned Salernos noset of circumstances formulation of the facial challenge standard and suggestedthat a plaintiff can prevail on a facial challenge by merely showing the Act is a%4unconstitutional in most cases. See City of Chicago v. Morales, ! U.S. !, !,119 S. Ct. 1849, 185859 n.22 (1999) (plurality op.) (Stevens, J., Souter, J., and a(4Ginsburg, J.); Janklow v. Planned Parenthood, 517 U.S. 1174, 1175 & n.1, 116"(z+))'" S. Ct. 1582, 1583 & n.1 (1996) (Memorandum respecting the denial of a4certiorari.) (Stevens, J.). See also Florida League of Professional Lobbyists, Inc. a4v. Meggs, 87 F.3d 457, 459 (11th Cir. 1996) (recognizing disagreement amongthe Justices concerning how high the threshold for facial invalidation should beset.). Because the plaintiffs have not shown the just compensation rate will a4ever fall outside the statutory range, let alone that it will do so in most cases,their facial challenge fails even under the more permissive formulation suggestedby Justices Stevens, Souter, and Ginsburg.o #[\  P_P#"  z+))pV"ԌIn sum, we reject the plaintiffs contention that the Act fails to provide anadequate process for a utility to obtain just compensation because it violatesseparation of power principles. Had the Act eliminated all possibility of judicialreview and made the FCC the final arbiter of a utilitys compensation, we wouldbe faced with a different situation, but the Act does not do that. Instead, as wehave explained, the Act merely provides that the FCC has the first cut atfashioning the compensation a utility receives for the taking of its property. Allowing an administrative body, such as the FCC, a role in the process ofdetermining just compensation for a taking is permissible so long as its order issubject to judicial review to ensure that a court makes the ultimate determinationof just compensation. That is what we have here: the FCCs rate order issubject to review by an appellate court which has the power both to determinethe proper level of just compensation and to ensure that the utility receives justcompensation, at least where the just compensation rate falls within the statutoryrange of rates specified in 47 U.S.C.  224(d)(e)." z+))p"Ԍ a4f2. Whether Limiting the FCC to Awarding a Just and Reasonable Rate Makes a 4gthe Acts Process for Awarding Just Compensation Constitutionally Inadequate    \We turn now to the plaintiffs alternative argument in support of theirposition that the Act fails to provide a constitutionally adequate process for autility to obtain just compensation. They argue the Acts provision limiting theFCC to awarding a just and reasonable rate within the range of rates set by an 4Congress, see 47 U.S.C.  224(b), will prevent the FCC from awarding a utilitythe constitutionally required rate of just compensation. The plaintiffs begin bynoting that the Acts just and reasonable rate formula is the same formula theFCC was required to apply in calculating compensation for access to a utilitysproperty before the mandatory access provision was added to the Act. Hence, autilitys rate of compensation for forced access to its property (a taking) isgoverned by the same standard as when it voluntarily provided access. Theplaintiffs say that fact renders the process for awarding just compensation for the a4taking constitutionally inadequate. q According to the plaintiffs, because a utilitys property is now beingtaken, the rate it was able to collect when it was voluntarily providing access isno longer appropriate. That is so, they argue, because the standard fordetermining just compensation for a taking should be more rigorous than that for ar&4determining a rate for providing voluntary access. Citing Duquesne Light Co. v. a(4Barasch, 488 U.S. 299, 307, 109 S. Ct. 609, 615 (1989), the plaintiffs point out"( z+))'" that the rate a utility is entitled to receive for providing access voluntarily mustonly be not so unjust as to be confiscatory. In contrast, they say, the SupremeCourt has defined just compensation more expansively. (citation and quotation a<4omitted). For example, in United States v. Miller, 317 U.S. 369, 374, 63 S. Ct.276, 280 (1943), the Court defined just compensation as fair market value,which is "what it fairly may be believed that a purchaser in fair markovidingthat a utility receive the same rate for forced access as it received for voluntaryaccess, the Act fails to provide an adequate process for a utility to obtain just a4compensation. Cf. Consolidated Gas Co. v. City Gas Co., 912 F.2d 1262, 1314 a419 (11th Cir. 1990) (en banc) (Tjoflat, C.J., dissenting) (endorsing theproposition that the just compensation price a utility receives for a takingshould satisfy a more stringent standard than the standard that applies insetting rates, because in one instance the utility is acting under compulsion whilein the other instance it has voluntarily undertaken to operate in a regulated a4industry), vacated, City Gas Co. v. Consolidated Gas Co., 499 U.S. 915, 111 S.Ct. 1300 (1991). As an initial matter, we do not believe this issue is ripe for decision. Shorn of its packaging about the regulatory price versus the just compensationprice, the issue comes down to whether the Act is unconstitutional because itsays the FCC shall order a just and reasonable rate instead of saying it shall"|'! z+))&" order a rate that provides just compensation. At this point, however, we aremerely dealing with abstractions and not with concrete facts; it would requiresheer speculation for us to conclude that the actual rates ordered by the FCCwill fail to provide just compensation. Even the plaintiffs seem to concede thispoint when they note in their reply brief that they are not challenging the Acts formula for providing compensation. In light of the speculative nature of the ax 4inquiry, this issue is not fit[] . . . for judicial decision at this juncture. Abbott a4Laboratories v. Gardner, 387 U.S. 136, 14849, 87 S. Ct. 1507, 1515 (1967)( basic rationale of the ripeness requirement is to prevent the courts, throughavoidance of premature adjudication, from entangling themselves in abstractdisagreements). We do not mean to imply that if this issue were ripe for decision we a4would be persuaded by plaintiffs argument. #[\  P_P#The Duquesne decision they relyupon was not interpreting any aspect of this Act, either before or after its 1996amendment. Instead, that decision merely held that in a regulated industry thelevel of compensation set by the government must not be so low as to be a@!4confiscatory. See #[\  P_P#Duquesne, 488 U.S. at 307, 109 S. Ct. at 615. #[\  P_P# There is aT#4nothing in Duquesne, or in the record before us, which indicates that the rate ofcompensation provided in this Act ( before its amendment) for voluntarilyprovided access was just above confiscation. We have no reason to assume that"|'" z+))&" the rate under the prior version of the Act was only minimally adequate to meetconstitutional requirements for voluntary access, and thus, in the plaintiffs view,constitutionally inadequate under the current Act for forced access situations. Indeed, for all we know, it is just as likely that the earlier rate formula gave the aP4utilities industry more than the constitutional minimum.#[\  P_P# In any event, as we have explained, the FCCs determination of thecompensation a utility receives is not conclusive under the Act. A utility thatbelieves the FCCs rate order fails to provide just compensation may appeal thatorder to the court of appeals. The court will then make a judicial determinationof the proper level of just compensation and ensure that the utility is notrequired to provide access to its property at a rate that does not provide just a4compensation.X0ÍX0Í 2 av4#[\  P_P# ÍAs with our discussion of the first argument, we are assuming here that thejust compensation rate falls within the statutory range specified in 47 U.S.C. 224(d)(e) and, in the absence of any evidence that the just compensation ratewill ever fall outside that range, we leave for another day the issue of whathappens if it does. That said, we decide nothing about the relationship betweenthe just and reasonable rate specified in the Act and just compensationrequired by the Constitution, because that issue is not ripe for decision.  a41 III. CONCLUSION ă To sum up, we conclude the Acts mandatory access provision effects ataking of a utilitys property but that the Act is not facially unconstitutional"@!# z+)) " under the Fifth Amendment, because, at least in most cases, it provides aconstitutionally adequate process which ensures a utility does not suffer thattaking without obtaining just compensation. Accordingly, the district courts a<4judgment in favor of the defendants is AFFIRMED.*'5 #[\  P_P#