George J. Barco, Yolanda G. Barco, Barco & Barco, Meadville, for appellants.
Joseph A. Hudock, Greensburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., filed a dissenting opinion.
The appellant, a cable television company, seeks reversal because the court of common pleas and the Commonwealth Court have upheld a provision in an ordinance which prohibited the Company from increasing its charges to the people in the community, without approval of the appellee Borough. Although the Borough has denied three requests to increase the charges, fixed more than eight years ago, the parties have stipulated as follows:
"13. It is stipulated that the primary issue involved in this case is whether or not the Borough of Scottdale has the legal authority to insist upon prior approval for any increase or revision in the service charges as set forth in Section 4(c) of the aforesaid Ordinance."
No factual issue has been raised by the record or by the questions presented to this Court as to the unreasonableness of any action of the Borough.
The Borough initiated the litigation by a complaint in equity to restrain the Company from increasing its charges without prior approval of the Borough. After preliminary objections, a stipulation of the parties, an opinion, an amended opinion as to a permanent injunction, exceptions filed and
argued and the entry of a final order, the Company was enjoined from increasing its charges without the prior approval of the Borough.
The basic issue, as the parties have stipulated, refers to the legal authority of the Borough to insist upon approval of any increase in charges. A proper analysis of the legal question calls for a brief examination of the history of cable television and its public regulation.*fn1
In the past quarter century cable television has developed to an important position in our present-day economy.*fn2 Its early growth as an unregulated industry commenced in small communities throughout the nation. The original concept was of a high antenna receiving unit on a mountain peak or other high place, coupled by transformers, amplifiers and transmission and distribution cables to homes in the vicinity.*fn3 Through an evolutionary process the industry has come to large cities where, through the use of high towers and other developments in distribution, signals can be picked up and carried by microwave and cable to customers hundreds of miles away. The potential of cable television companies has vastly increased because of the use of the systems not only to carry programs picked up out of the air, but also to carry programs which the companies originate. This is referred to as cablecasting.
The industry had little or no regulatory control at the outset. The initial problems related to the high capital investment requirements for a system and the proper technical
installation and servicing of the systems.*fn4 The first controls came from local governments. In many a town or borough, franchises were sought for cable television systems and severe competition developed among applicants for franchises. In some states public utility commissions, by administrative construction of their statutes or by legislative amendments, began to assert jurisdiction.*fn5 In other places, as ...