hands of the franchising authority based on uniform standards and policies, 47 U.S.C. § 521(2) and (3), and because the franchising authority includes any governmental entity empowered to grant a franchise, Section 522(9), along with the authority to regulate Sections 531(c), 542(d), 543 and 544.
Plaintiff relies on a number of decisions to support its claims. Rollins Cablevue, Inc. v. Saienni Enterprises, 633 F. Supp. 1315 (D. Del. 1986); Greater Worcester Cablevision, Inc. v. Carabetta Enterprises, Inc., Util. L. Rptr. (CCH) para. 24,886 (D. Mass. Nov. 20, 1985) and Cable Holdings of Georgia v. McNeil Real Estate Fund VI, 678 F. Supp. 871 (N.D.Ga. 1986). Except for Rollins, all of the decisions discussed plaintiff's access rights under Section 541(a)(2), but the private right of action issue based on Section 541(a)(2) was not raised. In Rollins, the court had an application for injunctive relief as well as a claim for access under Section 541(a)(2). The injunction was sought by a franchised operator against an unfranchised system. After reviewing the legislative history of the Cable Act to include the establishment of a national policy that clarifies a system of local, state and federal regulation of television, with emphasis on local franchising as a primary means of cable television regulation; after reviewing the provision under which access to the courts is provided, and after alluding to the Communications Act of 1934, of which the Cable Act is an amendment, which traditionally was viewed as not providing for private rights of action, Judge Roth concluded that local franchising authorities are intended to be the regulators and enforcers of the Cable Act, and that court remedies were provided in very limited instances. Id. 633 F. Supp. 1319-1320. Judge Roth concluded that there was no intent, express or implicit, to create a private right of action in a cable operator to enjoin an unfranchised rival cable operator. In separately considering the plaintiff's right to access, and without reference to the limited instances of court remedies, the court concluded that Section 541(a)(2) provides for access to a franchised operator. In granting a preliminary injunction the court opined "it would seem likely that Rollins will be able to prevail in its claim of right to access, under the provisions of the Cable Act and the Delaware Regulation of Television Systems Act, 26 Del. C. § 601 et seq. which creates a franchising authority. . . ." Id. 633 F. Supp. 1322. It is worth noting that the Delaware statute itself provides access for an operator as well as just compensation to an owner. Pennsylvania does not have a comparable piece of legislation.
We conclude that the Cable Act does not expressly provide for a private remedy, but intends that enforcement should be left to the franchising authority. To determine whether a private cause of action is implicit in a federal statute not expressly providing one, the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), espoused a four prong test to discern congressional intent.
The threshold consideration under Cort is whether plaintiff is one of the class for whose special benefit the statute was enacted. In this regard, the Supreme Court has noted that the most accurate indicator of whether a privately enforceable remedy should be implied is the duty or right creating language in the statute itself. Cannon, 441 U.S. at 690, n. 13. In stating the purposes of the Cable Act, Section 521 tells us, among other things, that it was to establish a national policy, to establish franchise procedures and standards to assure growth and response to the needs of the local community and to establish guidelines for the exercise of federal, state and local authority with respect to regulation. Such language certainly evidences an intent of establishing a national policy to benefit the public at large. In the process, benefits will result to various interests, but it cannot reasonably be understood that Congress sought to provide special benefit to cable companies. Where their private rights needed vindication, as in the case of a denial of a renewal or modification, Congress has specifically provided for it in Sections 545 and 546. No other private right to court action was intended.
The second question under Cort is whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one. In responding, a review of the legislative history is helpful. The House of Representatives Report, No. 98-934, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. and Admin. News, 4455, et seq. tells us that the municipal franchise commonly specified the nature of the cable system to be constructed, and that the purpose of the Act was to continue reliance on local franchising as a primary means of regulation; that this was a critical role which should be preserved to include the local role of regulating through the franchise process. It required that the service be made available in all areas of a city so that residents of lower income areas are not deprived of cable service. Id. 19 and 20, 4656-4657. At the heart of the legislation was the need for national standards which clarify the authority of various levels of government; the ability of a local government entity to require particular cable facilities was enhanced by granting it powers necessary to tailor facilities to the needs of the community. Id. at 26, 4663. In addressing franchising and regulation, the House Report speaks of granting a franchising authority the power to provide terms and conditions related to the grant of a franchise such as the duration of the franchise term, delineation of the service area, the construction and operation of the system, and the enforcement and administration of the system. Id. 59, 4696. While these references are selective, we believe them to be representative. Our review did not disclose a legislative intent to grant individuals the right to enforce the Act or regulations.
Under Cort's third prong, we are to inquire if it is consistent with the underlying legislative scheme to imply the remedy plaintiff claims to exist. We think it is not consistent. The Cable Act, as indicated earlier, is an amendment of the Communications Act of 1934, which vested authority in the Federal Communications Commission. Under the Act of 1934 the courts traditionally ruled that it did not create private rights of action. See Rollins, Id. 633 F. Supp. 1319.
The final question of the Cort test is whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law.
We believe the issue plaintiff seeks to litigate, i.e.: whether a right to access exists over public rights-of-way and through easements - dedicated for compatible uses, is an issue traditionally left to be determined by the common law or statutory law of the states. This is further enforced by the emphasis on local authority involvement in the granting of franchises. Having granted plaintiff a franchise, the local franchising authority has it within its power to determine, as well as enforce, plaintiff's rights under applicable state law.
Having considered the relevant considerations proposed by Cort, the result dictates against implying a private federal remedy to enforce access under Section 541(a)(2) of the Cable Act.
Finally, defendants challenge the standing of plaintiff to pursue a claim under Section 250.554 of the Landlord and Tenant Act of 1951, as amended, 68 P.S. § 250.101 et seq.
In Count XI plaintiff alludes to Section 250.554 as providing in pertinent part that:
"It is the intent of this article to insure that the landlord may in no way restrict the tenant's right to purchase goods, services and the like from a source of the tenant's choosing and as a consequence any provision in a written agreement attempting to limit this right shall be void and unenforceable in the courts of this Commonwealth."
Claiming to be a third party beneficiary of this provision, plaintiff seeks to enjoin defendants in the alleged summary termination of plaintiff's cable television service.
Plaintiff now also asserts standing as a real party in interest under Fed. R. Civ. P. 17(a). However, Count XI identifies plaintiff's role as a third-party beneficiary, and makes no additional allegations upon which to assess the present claim. The pretrial memorandum similarly represents that the "threshold question in the case concerns a tenant's right in Pennsylvania to receive the cable television programming of his choice and the right of the provider of such programming to provide such services upon request of the tenant." No independent basis for the action under the Tenant Act is asserted. In the circumstances, we do not believe that the tenants rights section, Section 250.554, can be read as creating any interest in cable television operators.
Defendants challenge the right of plaintiff to bring the action under the Tenant Act because it does not enjoy third party standing and is not a third party beneficiary. Plaintiff claims that its relationship here gives it real party in interest status. Both sides have extensively briefed their positions which most strongly advocate against each other.
Since we believe the outcome of this issue will directly depend on the rights of a tenant, it will aid us to add a portion of Section 250.554 which represents the substance of "Tenants Rights" added to the Landlord and Tenant Act by the Pennsylvania legislature in 1974. This portion of Section 250.554 immediately precedes that quoted earlier herein as part of the plaintiff's claim in Count XI. It states:
"The tenant shall have a right to invite to his apartment or dwelling unit such employees, business visitors, tradesmen, deliverymen, suppliers of goods and services, and the like as he wishes so long as his obligations as a tenant under this article are observed. The tenant also shall have right to invite to his apartment or dwelling unit, for a reasonable period of time, such social guest, family or visitors as he wishes so long as his obligations as a tenant under this article are observed. These rights may not be waived by any provisions of a written rental agreement and the landlord and/or owner may not charge any fee, service charge or additional rent to the tenant for exercising his rights under this act."
Although there may be a conflict in the authorities, we believe there is a sound basis for disposing of the issue concerning the plaintiff's standing to bring an action based on the rights of tenants under the Landlord and Tenant Act. In this regard, plaintiff relies on Stephenson v. Diversified Holdings Corp., No. 5144 Equity 1983 (C.P. Berks, Aug. 24, 1983, aff'd No. 01364 Phila. [slip opinion] 1983 [Pa. Super Dec. 14, 1984]), and Wilco Electronic Systems, Inc. v. Davis, supra. The latter, while erroneously addressing the First Amendment issue involved in this case, also concluded that Section 250.554 guaranteeing tenant rights included the right to purchase cable television services of their choice. Plaintiff's complaint seeks to establish it as a beneficiary of the tenants rights as established by the rental arrangement. In this context, the plaintiff's right is derived from the right of the tenant.
We hold, with more persuasive authority to the contrary, that tenants do not have a right to purchase cable television of their choice. Accordingly, plaintiff has no standing as third-party beneficiary of the tenants agreement with their landlord. The T-C Harrisburg Company and The T-C Harrisburg East Company v. Sammons Communications of Pennsylvania, Inc. and Sammons Communications, Inc., No. 3670 S 1984 (C. P. Dauphin County, July 6, 1987). In this case Judge Dowling found the above authorities unpersuasive and concluded that Section 250.554 was not intended to include cable television service. Further, that there was no tenant ownership interest vested in the cable fixtures as an implied right essential to the use and enjoyment of the premises. Judge Dowling refused access to franchised cable operators by granting ejectment relief. This ruling was followed in Weaver v. Dallmeyer, No. 86-SU-02510-07 (C.P. York County, October 16, 1987) which holds that Section 250.554 of the Tenant Act does not authorize a tenant to select cable television services where it would necessitate a permanent physical occupation of the landlord's private property in violation of the Fifth and Fourteen Amendments to the United States Constitution. In Weaver, one of the plaintiff's was the plaintiff in the instant case. There, as here, the court denied Cable Investments, Inc., the right to enter upon the landlord's private property at the instance of tenants.
Having determined that plaintiff's right does not rise any higher than the right of the tenant, we need not reach an additional and more complex issue dealing with the right of plaintiff to physically occupy, on a permanent basis, the private property of a landlord without providing just compensation. See Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982).
Since it has been determined that plaintiff cannot prevail as to Counts V and VII, and that it has no standing to bring a private action under the Cable Communication Policy Act of 1984 or as a third-party beneficiary to the rights of a tenant under the Landlord and Tenants Act, Counts XI and XII, the defendants' motion in limine seeking dismissal of Counts V, VII, XI and XII will be granted.
At the trial of this matter no evidence pertinent to such claims will be submitted.
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