concurring:
I agree with the majority that we are bound by the holding of Centel Cable Television Co. of Fla. v. Admiral’s Cove Assoc., Inc., 835 F.2d 1359 (11th Cir.1988), that cable companies have an implied right of action under section 621(a) of the Cable Act against private developers who block construction of cable systems through easements dedicated to compatible uses and that enforcement of this right does not violate the fifth amendment takings clause. Also I agree that the Admiral’s Cove reasoning dictates that a cable company have a right to cross the developer’s roads and property in order to have access to utility easements when the developer has given this right to other utilities. Because Centel has succeeded on the merits under Admiral’s Cove and has demonstrated the absence of an adequate remedy at law, it is entitled to permanent injunctive relief.1
Notwithstanding trepidation inherent in my status as a visiting judge, I write separately to express concern over the Admiral’s Cove treatment of the takings issue. The Admiral’s Cove court relied upon FCC v. Florida Power Corp., 480 U.S. 245, 107 S.Ct. 1107, 94 L.Ed.2d 282 (1987), to conclude that “[s]ince most developers voluntarily grant easements for use by utilities, ... Congress may force developer to allow a cable franchise to use the easement without offending the taking[s] c[l]ause of the Constitution,” 835 F.2d at 1363 n. 7.
In Florida Power, the Supreme Court held that the Pole Attachments Act, which authorized the Federal Communications Commission under certain conditions to regulate the rates that utility-pole owners charged cable companies for space on the poles, did not effect an unconstitutional taking of the pole owners’ property. The pole owners argued that the case was governed by Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), which held that a New York statute that required landlords to allow installation of cable television facilities on their apartment buildings resulted in a per se taking of the landlords’ property requiring just compensation. The Florida Power Court distinguished Loretto by noting that whereas “the statute ... in Loretto specifically required landlords to permit permanent occupation of the property by cable companies,” the pole owners were not required by the Pole Attachments Act to allow installation of the cable on the poles. See Florida Power, 480 U.S. at 251, 107 S.Ct. at 1111 (emphasis in original). Reasoning that “[t]his element of required acquiescence is at the heart of the concept of occupation,” the Florida Power Court concluded that the pole owners had voluntarily permitted the physical occupation and that therefore the regulation was not a per se taking as in Loretto. See id. 480 U.S. at 252-53, 107 S.Ct. at 1112.
Notwithstanding the Admiral’s Cove panel’s reliance on Florida Power, I do not believe that this Supreme Court case decides the takings issue at stake in the present case. Unlike the pole owners in Florida Power, the developer here has never voluntarily permitted the cable company itself to occupy the property. Instead, the *912developer has given permission to other utilities and has deliberately undertaken to exclude the cable company.
If the developer in this case had already granted the utility easements when the Cable Act was enacted, then the situation here might be strikingly similar to that present in Loretto. Having already granted the utility easements, the developer would have no power to prevent the installation of cable lines on its property. This situation would be analogous to the facts in Loretto, in which the landlords, having built and rented out apartment buildings, had no practical means to prevent the installation of cable equipment on those buildings.2
Here, however, the developer had not granted any utility easements when the Cable Act became law. Thus, the Act could be construed not as requiring the developer’s acquiescence in the installation of cable equipment, as was the case in Loretto, but rather as merely placing a condition on the developer’s future development of his property. These facts are more analogous to those in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), in which a state land-use commission had granted a permit to the plaintiffs to construct a beachfront bungalow on the condition that they grant the public an easement to pass along the beach on their property. The Nollan Court held that the easement condition was an unconstitutional taking, reasoning that the commission’s imposition of this condition was not a legitimate exercise of its regulatory power because the condition did not substantially further governmental purposes that would justify denial of the permit.
It would require a more extensive analysis of the Supreme Court’s takings jurisprudence than that present here to resolve the complex issue present in this case. Needless to say, I do not think that Admiral’s Cove adequately addressed the takings concerns in the one footnote that it devoted to this topic. I would urge this circuit, by rehearing en banc if necessary, at least to consider providing a better rationale for the constitutional holding of Admiral’s Cove.
. I express no opinion on the question of whether the Florida Plat Act grants to cable companies a right of access to platted public utility easements in a development because we need not reach this question in order to decide this case.
. The Loretto court acknowledged that "the landlord could avoid the requirements [that he allow the cable installation] ... by ceasing to rent the building to tenants," but concluded that "a landlord's ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.” 458 U.S. at 439 n. 17, 102 S.Ct. at 3178 n. 17.