The opinion of the court was delivered by: WILLSON
The relief sought in this civil action is solely that of an injunction. Plaintiff Dispatch, Inc., is a Pennsylvania corporation with its principal place of business in the City of Erie in this District. It owns and operates television and radio stations known as WICU, being duly licensed by the Federal Communications Commission. The defendant City of Erie is a municipal corporation of the third class under the law of Pennsylvania. The Council of the City of Erie is the legislative body which governs the operation of the city government. The Court permitted Erie Television Corporation, the owner and operator of another television station in the City of Erie, to be made an intervening defendant. In this litigation it sides with the City of Erie.
Attached to the complaint is an ordinance of the City of Erie, No. 39-1965, which the parties now admit has been duly passed by the council of the city and is in all respects a legal enactment. The title of the ordinance is as follows:
"Providing for the granting of franchises for Community Antenna Television Systems; establishing regulations and conditions for the construction, maintenance and operation thereof; the fees to be paid therefor and providing penalties for violations."
Plaintiff urges that this Court grant an injunction enjoining the City of Erie and the Council of the City of Erie from carrying out the provisions of the ordinance.
This case first came on for hearing before the Court on the motion of the defendants City and Council for dismissal. After that hearing an order was entered on November 24, 1965, denying the motion and suggesting that answers be filed and thereafter, in the event that there were no factual issues, motions for summary judgment would be entertained. Counsel abided by the Court's suggestion, and answers have been filed, and a motion for summary judgment was filed by defendants. The attorneys have been heard at argument, and at that argument held on December 17, 1965, there appeared no controversy whatsoever as to the factual situation presented. The terms of the proposed ordinance are clear and, as indicated, a copy has been furnished to the Court.
From the pleadings therefore and the exhibits attached thereto, and the statements of counsel which appear of record, there is no genuine issue as to any material fact. Summary judgment is therefore the appropriate method of securing a final decision in this Court. It is to be again noticed that only relief sought is a final injunction enjoining the enforcement of the ordinance. At the outset this Court is aware, as is counsel, that such relief is extraordinary in the usual legal sense. It is to be noticed also that there is no diversity jurisdiction in this case, and that the relief, if any, to be given plaintiff must arise under the Constitution or some Act of Congress. As a matter of fact plaintiff invokes only the federal-question jurisdiction of the Court in its many allegations with respect to its claims for relief.
It is to be noticed that in the definition of terms as used in the ordinance in Section 2(e) CATV is defined as:
"'Community Antenna Television System' - Sometimes referred to herein as CATV. Shall mean a master community antenna, the lead cable or cables therefrom to the City and/or throughout the City, the distribution cable or cables from the lead cable or cables to individual subscribers, and all necessary equipment and parts for the purpose of receiving at the antenna and distributing to subscribers, television programs or signals from television stations licensed by and operating under the supervision of the Federal Communications Commission. It is not intended to mean and it shall not mean:
1. Special programming in the manner commonly known as 'Pay TV'.
2. Originating and televising programs or signals.
3. Recording programs or signals either by tape or otherwise, for telecasting or broadcasting purposes."
It is noticed also that under Section 3 the franchise to be granted will permit the grantee to engage in the business of operating and providing a CATV system in the City of Erie and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street or highway, such wires, cable conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition so to use, operate and provide similar facilities or properties rented or leased from a public utility franchised or permitted to do business in the City of Erie. It is provided under this section also that a grantee may make a charge to subscribers for connection to its CATV system, and that the charge is only for transmission to the subscribers of television and audio programs received free by the public generally at the same time from regularly licensed stations. No charge may be made to subscribers for any other transmissions directed to them.
At this point it is interesting to refer to the reasons why plaintiff says the ordinance is illegal and void and should be enjoined. Plaintiff in its grounds for relief pleads its case by a shotgun type of pleading. It appears to this Court that it desperately shoots in some twelve directions hoping to strike an area where federal law has application. But as this Court sees it, there is no federal issue in this case whatsoever. In Paragraph Twelve of the complaint some twelve reasons are advanced why the ...