unnecessary the resolution of federal constitutional questions.
We consider now the second general type of abstention relevant to the instant case, the so-called Burford abstention. In Burford the Supreme Court ruled that abstention was properly invoked where an oil company attacked on constitutional grounds the validity of a Texas Railroad Commission order permitting Burford to drill oil wells in an approximately 280 sq. mile oil tract or "pool." The Court so ruled because the controversy directly implicated the formulation of broad economic and social policy of that state. Specifically, the Court alluded to the profound impact of oil production and allocation on the economy and the conservation efforts of the state; the geologically-based necessity of regulating single wells only vis-a-vis an entire pool; and the state's decision, therefore, to establish a special judicial network whereby all matters of this nature would be brought first before the Commission and thereafter appealed to a specially designated state district court. Under these circumstances the Court held that to retain control of the dispute in a federal court, with its comparative lack of expertise and its likelihood of rendering a judgment inconsistent with prior or future state pronouncements, would upset the carefully structured attempt of Texas to deal wisely and uniformly with a matter of basic state policy.
Burford -type abstention also has been invoked by the Court where a party attacked a state regulatory order regarding cessation of railroad service. In that case the Court found that abstention was proper since the state had established a special state-wide review process to resolve the "essentially local problem" of regulating intrastate transportation service, which required one to balance the needs of the public against the economic interests of the railroad. Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951). The Third Circuit also has sanctioned abstention on this ground in an action by an airline to enjoin enforcement of a state public utility commission rule requiring it to obtain commission approval prior to discontinuing certain flights. Allegheny Airlines, Inc. v. Pennsylvania Public Utility Commission, 465 F.2d 237 (3rd Cir. 1972). The basic rationale in Allegheny Airlines was that the controversy involved state-wide transportation matters which the Pennsylvania Public Utility Commission had the responsibility to regulate in the public interest, and that to reach the merits of the airlines' contention while the airline refused to re-institute service might throw the state into chaos by encouraging other airlines to follow suit. Conversely, in a diversity action in assumpsit to recover payment for the sale of milk, this Circuit refused to order abstention where referring the matter to the state milk marketing board would further no Burford interest. Specifically, the court noted that the suit involved nothing within the special discretion or expertise of the state board; that it did not involve the formulation of state policies; that it did not interfere with a matter presently before the board; and that it was essentially a dispute between two private parties. Baltimore Bank, Etc. v. Farmers Cheese Corporation, 583 F.2d 104 (3rd Cir. 1978).
The principal element in Burford abstention is the implication of state interests, and in Colorado River, supra, one of its more recent decisions in the area, the Court indicates how very substantial the effect of federal court action thereon must be to invoke Burford abstention. The Colorado River case involved an action by the United States seeking a declaration of its rights under federal and state law in certain Colorado rivers and streams. Despite the Court's recognition that probably "no problem of the Southwest section of the Nation is more critical than that of the scarcity of water," 424 U.S. at 804, 96 S. Ct. at 1239; that Colorado had specifically established an elaborate regulatory scheme for adjudication of water rights disputes; that the United States itself had utilized said scheme in the past; and that the water rights established under federal law might conflict with those prevailing under state law, the Court held that state interests were not sufficiently implicated to justify abstention.
As Professor Moore states, Colorado River, when compared with the earlier holding in the less, or at best equally, compelling case of Southern Railway, supra, makes it clear that Burford -type abstention is proper "only when there are truly exceptional circumstances 1A Moore p. 2130. At the very least, it suggests that the Court is becoming less receptive to pleas for abstention on that basis.
Applying Burford and its progeny to the case at bar, we conclude again that abstention is inappropriate. There are material distinctions between the instant case and those in which the courts have invoked the Burford doctrine. First, and perhaps most conclusively, this case lacks the crucial element of Burford abstention that the controversy be one "whose importance transcends the result in the case at bar," by reason of its effect on state policy in an area of substantial public concern. Colorado River, supra, at 814, 96 S. Ct. at 1244-1245. Here, unlike Burford and Allegheny Airlines, where a state's entire policy regarding oil production and air transportation respectively were at issue, the defendants point to no particular state-wide policy or program which has been drawn into question. As important as it may be locally, this controversy appears simply to have no material impact on any matter beyond the installation of cable television in the City of Pittsburgh, and if the converse be true, the defendants certainly have not established it.
Another basic difference between the case sub judice and Burford, Southern Railway, and Allegheny Airlines, lies in the fact that Pennsylvania has created neither a public agency to deal particularly with the regulation of cable television service nor a special system of judicial review for those allegedly aggrieved by governmental action regarding such service.
We recognize that creation of such bodies is not an absolute prerequisite to the establishment of Burford abstention, See Wright & Miller : Civil § 4244, but it is an additional indication that to this point the state itself has not viewed the regulation of cable television systems as a matter of general public concern or one which requires the expertise of a specialized regulatory agency.
In the final analysis, it appears that the defendants' argument for abstention rests almost exclusively on the fact that the installation of this system is a matter of keen public interest. But the gravamen of Burford abstention is the implication of public policy, which is, of course, to be distinguished from public interest. The defendants have failed to identify any legitimate and substantial public policy at issue here, nor is the court able to perceive any such considerations which exceed or even equal the seemingly substantial ones considered but deemed insufficient in Colorado River. Thus, is not a "truly extraordinary" situation calling for the exceptional remedy of abstention.
There is an additional factor, though less significant than those considered above, which militates against abstention on either Pullman or Burford grounds. That is the matter of undue delay. See cases at Wright & Miller : Civil § 4242 n.49.
Under the terms of the CCO, the franchisee is obligated to proceed with construction and installation of the system according to a rather detailed time table, and § 8.1(f) of the franchise agreement executed by Warner and the city specifies that "any litigation instituted by a third party shall not suspend franchisee's obligation to construct and install the system in accordance with the (said) time schedule ...." If Warner is engaged in construction and installation work, it is fair to assume that should the contract be declared void that some of that work will have been wasted. In addition, Three Rivers claims that it may be irreparably prejudiced by Warner's on-going installation efforts.
Thus, the longer the resolution of this matter is delayed, the greater the potential harm to both companies and the public. In view of the fact that no state proceeding has yet been commenced, it is likely that our abstention would delay the ultimate disposition of this case for more than an immaterial period. If this was the only matter weighing against abstention, it would not be sufficient, but in conjunction with the other bases which we have expressed, the matter of prejudicial delay is further support for our belief that abstention is wholly inappropriate.
Accordingly, the request that this court abstain while plaintiffs pursue remedies that may be available in the state courts will be denied.
III. COUNT I: THE ALLEGED WARNER DEFICIENCIES
The action of council in awarding the cable contract to Warner notwithstanding the alleged deficiencies in its bid forms the basis of plaintiffs' due process and equal protection claims under § 1983 and § 1985, and under the Fifth and Fourteenth Amendments. Collectively those claims comprise count I of the complaint. Their essence may be drawn from P 63 thereof which states:
"The action of Council in considering the materially deficient Warner proposal and awarding the franchise for the cable communications system for the City of Pittsburgh to Warner based on arbitrary, capricious, unlawful and irrelevant considerations unfairly deprived plaintiffs of due process and equal protection of laws ...."
A. The Statement of a Due Process Claim Under § 1983
It is clear from the language of the Fourteenth Amendment that to make out a claim for denial of procedural due process one must assert and prove that he unjustly was deprived of a protected liberty or property interest. The plaintiffs' primary contention appears to be that the protected interest of which they were deprived was a property right to have the cable television franchise awarded in accordance with the mandates and requirements of the CCO and the RFP. This will be examined further after a review of the relevant precedent.
We first consider the concept of the protected liberty or property interest. Current analysis in the procedural due process area employs the so-called "entitlement doctrine" as opposed to the former, more rigid, "rights/privileges" concept.
In the modern analysis, which was articulated principally in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), both liberty and property interests are seen as emanating not only from the Constitution, but also from state or federal statutory schemes and customs which create legitimate claims of entitlement to the benefits which they confer. With regard to property interests, the Roth Court stated at p. 577, 92 S. Ct. at p. 2709:
... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it....