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CABLE ASSOCS. v. TOWN & COUNTRY MGMT. CORP.

February 15, 1989

CABLE ASSOCIATES, INC., et al.
v.
THE TOWN & COUNTRY MANAGEMENT CORPORATION t/a SUPERIOR CABLE COMPANY; CABLE ASSOCIATES, INC., et al. v. THE TOWN & COUNTRY MANAGEMENT CORPORATION t/a SUPERIOR CABLE COMPANY



The opinion of the court was delivered by: CAHN

 Cable Associates, Inc., t/a Suburban Cable of Lancaster County ("Suburban") sought equitable relief under section 621(a) (2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 541(a) (2) (Supp. IV 1988), *fn1" against The Town & Country Management Corporation t/a Superior Cable Company ("T&C") in order to enable Suburban to continue to supply cable television service to the tenants at two apartment complexes in Lancaster County. In a bench opinion delivered August 17, 1988, following a non-jury trial, I found that the plaintiffs had a private right of action under the statute; that Suburban was entitled to reimbursement for damage done to its cable; but that Suburban had no right to continue to use drop lines to individual apartments through the buildings managed by the defendant without permission from the defendant. I denied Suburban's claims based upon alleged violations of the antitrust statutes. I also denied equitable relief to Suburban based upon state law claims. In order to avoid a repetition of the factual background of this controversy, a copy of the bench opinion is attached hereto as Appendix "A."

 Plaintiff filed a post trial motion with this court to amend the findings in the bench opinion and to amend the judgment entered on August 19, 1988. Plaintiff also filed an appeal to the Third Circuit Court of Appeals. I erroneously dismissed the post trial motion in this court because of that pending appeal. However, proper procedure requires that the post trial motion be considered in this court. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1983).

 The sole contention of Suburban in its post trial motion involves the construction and interpretation of section 621(a) (2) of the Cable Act. This section provides:

 
Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which had been dedicated for compatible uses, except that in using such easements the cable operator shall insure --
 
(A) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system;
 
(B) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both;
 
(C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator.

 In the bench opinion I construed the word "dedicated" in the statute in its legal sense according to Black's Law Dictionary. Although I used the fourth edition of this text in the bench opinion, the definition used in the fifth edition is substantially the same and provides at page 371:

 
Dedicate. To appropriate and set apart one's private property to some public use; as to make a private way public by acts evincing an intention to do so.
 
Dedication. The appropriation of land, or an easement therein, by the owner, for the use of the public, and accepted for such use by or on behalf of the public.

 Black's Law Dictionary 371 (5th ed. 1979).

 It is plaintiff's major contention that my interpretation of the word "dedicated" in the statute is unduly restrictive. More precisely, Suburban urges that the definition of "dedicate" in Webster's New Collegiate Dictionary, G. & C. Merriam Company (1979 edition) stating "to set apart to a definite use" is what Congress meant. There are a number of reasons why Suburban is incorrect.

 It is generally accepted that where Congress uses technical words, or terms of art, those words are to be construed by reference to the art or science involved. Corning Glass Works v. Brennan, 417 U.S. 188, 41 L. Ed. 2d 1, 94 S. Ct. 2223 (1974). Consequently, when Congress uses the word "dedicated" in the context of real property law, I am required to construe that word in accordance with its meaning under concepts of real property law.

 As can be seen from references to the definition of "dedicate" and "dedication" in Black's Law Dictionary, the concept involves a conveyance to the public of some interest in real property. *fn2"

 It should be noted that Suburban's post trial motion is directed primarily to the Colonial Crest apartment complex. The reason for this is that Colonial Crest (but not Oakview) has granted an easement to Bell Telephone Company recorded in the Recorder of Deeds' Office for Lancaster County, which provides:

 
"With the further right to place and maintain building cable, terminals, wires, and additional facilities that may be required to provide service to 'Colonial Crest' now or in the future."

 A copy of the easement agreement is attached hereto as Appendix "B." Suburban's position is that the Bell Telephone Company easement is "dedicated for compatible uses" and, therefore, Suburban may continue to utilize the existing drop lines to provide cable television service to the individual apartments in the Colonial Crest complex. There is no evidence the drop lines follow existing Bell Telephone lines. Instead, it is Suburban's position that the broad Bell Telephone easement and the statute provide a right to Suburban to continue to use its existing drop lines.

 A crucial issue, therefore, is whether or not "dedicated" requires a conveyance to the public and acceptance on behalf of the public or whether "dedicated" means a private easement set apart for compatible purposes.

 Suburban urges that because the phrase "rights-of-way" in the statute is prefaced by the adjective "public," and the word "easements" is not, Congress must have meant private easements rather than easements dedicated to public use. I do not think so. When Congress spoke of "public rights-of-way," it was referring to rights-of-way open to the public such as state highways, municipal roads, and other rights-of-way the public uses. When Congress used the word "easements" and qualified that word with the phrase "dedicated for compatible uses," it was referring to private easements but limited private easements to those dedicated for compatible uses in accordance with the definition of "dedicate" in Black's Law Dictionary. In order to understand why Congress did this, it is necessary to review the legislative history of the Cable Act.

 That task has been accomplished for us by Judge Sloviter in Cable Investments, Inc. v. Mark Woolley, 867 F.2d 151 (3d Cir. 1989). In that decision, the court did not adjudicate the issue of whether the Cable Act establishes a private right of action for a franchised cable operator. The court held, however, that section 621(a) (2) does not provide a franchised cable operator with access into an apartment building to individual apartments even though the property owner has granted easements to utilities through which cable companies could install their wiring. Judge Sloviter primarily based her conclusion on the legislative history of the Cable Act. She determined that Congress intentionally stopped short of providing payment for just compensation to an owner of a multi-unit project by a franchised cable operator who wishes to invade the owner's property through a private easement. I am, of course, bound by this pronouncement and must apply it to this case.

 Nevertheless, Suburban continues to assert that its interpretation of section 621(a) (2) of the Cable Act is correct. Suburban urges that Judge Sloviter did not adjudicate the issue in the factual context of the case at bar. Suburban points to the following language of Judge Sloviter's opinion:

 
Although it clarifies that a cable television franchisee may use easements dedicated for electric, gas or other utilities, it does not illume the critical issue, whether those easements are considered to run up to as well as into an apartment building for purposes of mandatory access.

 It is Suburban's position that at Colonial Crest the Bell Telephone Company easement does run into the individual apartments and that, therefore, the within case is distinguishable from Cable Investments.

 I think Suburban's reading of Cable Investments is too narrow. In Cable Investments Judge Sloviter identified the plaintiff's argument as follows:

 
Under its argument, if property owners grant easements to utilities through which cable companies could install their wiring, then the cable companies can compel the owners of a multi-unit dwelling, such as Waterford, to give them access to the private property and inside the apartment buildings themselves. Specifically, it argues that "Section 621(a) (2) [ 47 U.S.C. § 541(a) (2)] allows cable operators such as Cable Investments to use any easements which have been dedicated to a use compatible with the provision of cable television, not just those which are on the exterior of buildings. To the extent that the easements continue into the buildings, section 621(a) (2) requires access."

 It seems to me that Cable Investments involved exactly the same issue as in the case at bar. If it does, then Suburban's ...


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