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SERVICE ELECTRIC CABLE T.V. INC. v. TOWNSHIP ALLEN AND TWIN COUNTY TRANS-VIDEO (07/10/89)

decided: July 10, 1989.

SERVICE ELECTRIC CABLE T.V. INC., A CORPORATION, APPELLANT,
v.
THE TOWNSHIP OF ALLEN AND TWIN COUNTY TRANS-VIDEO, INC., A CORPORATION, APPELLEES



This case was transferred to the Commonwealth Court of Pennsylvania from the Superior Court of Pennsylvania to No. 2232 Philadelphia, 1988 and from the Court of Common Pleas of Northampton County to No. 1987-CE-1583 (Honorable Alfred T. Williams) Equity

COUNSEL

Christopher T. Spadoni, Bethlehem, for appellant.

William J. McCarthy, III, Allentown, for appellee, Tp. of Allen.

Henry S. Perkin, Perkin, Rapoport, Schattenstein & Feldman, Allentown, for appellee, Twin County Trans-Video, Inc.

Craig and Colins, JJ., and Kalish, Senior Judge.

Author: Craig

[ 127 Pa. Commw. Page 308]

Service Electric Cable T.V., Inc. appeals a decision of Judge Alfred T. Williams, Jr., of the Court of Common Pleas of Northampton County that dismissed Service Electric's exceptions to the trial court's adjudication and decree nisi granting an injunction to Allen Township and Twin County Trans-Video, and directed the prothonotary of the common pleas court to enter the decree nisi as a final decree. We affirm.

Allen Township, a township of the second class, adopted Ordinance No. 1-1965 on May 3, 1965. The ordinance provides for the regulation of "community antenna systems" or cable systems. The township granted a franchise to Twin County, as provided in the ordinance, that allowed Twin County to operate cable facilities in the township. Service Electric discussed the possibility of obtaining a franchise with the township in 1977, but did not pursue a franchise at that time. Service Electric has maintained a transmission line in Allen township for ten to twelve years to serve customers in East Allen Township. Service Electric

[ 127 Pa. Commw. Page 309]

    has also been providing service to six to ten customers in Allen Township without a franchise since sometime before 1984, apparently without the knowledge of the township.

In the summer of 1986, Service Electric began to solicit customers in Allen Township whose properties are adjacent to Service Electric's transmission line. Despite the township's notice to Service Electric that the cable company did not have a franchise to service customers in the township, Service Electric continued to solicit customers. Service Electric applied for a franchise in 1986; however, after holding a hearing on the application in November of 1986, the township denied Service Electric's request on February 10, 1987. Service Electric never challenged that decision.

Although the township denied Service Electric's request for a franchise, Service Electric continued to solicit customers and install cable and facilities in Allen Township until the trial court granted the township's and Twin-County's request for an injunction against Service Electric's activities in the township.

Service Electric makes three claims: (1) that Section 621(b) of the Cable Communications Policy Act of 1984 (Cable Act), 47 U.S.C. ยง 541(b) (1982) grandfathers Service Electric because it was allegedly an entity lawfully providing cable service without a franchise on or before July 1, 1984; (2) that the Cable Act prohibits the township from refusing to allow Service Electric to operate within the township; and ...


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