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ACS ENTERPRISES v. COMCAST CABLEVISION OF PHILADEL

July 14, 1994

ACS ENTERPRISES, INC, ET AL
v.
COMCAST CABLEVISION OF PHILADELPHIA, L.P., AND COMCAST CORPORATION



The opinion of the court was delivered by: JAN E. DUBOIS

 DUBOIS, J.

 This case arises out of the efforts by defendants to exercise their rights under the Tenants' Rights to Cable Television Act, Pa. Stat. Ann. tit. 68, § 250.501-B et seq. (1993 supp.) ("the Act"), to install cable television ("CATV") service in apartment buildings owned by all plaintiffs other than ACS Enterprises, Inc. Plaintiffs contend in their Amended Complaint *fn1" that the Act is unconstitutional under the Constitutions of the United States and the Commonwealth of Pennsylvania and seek declaratory and injunctive relief preventing defendants from proceeding under the Act.

 Currently before the Court is plaintiffs' Reinstated Motion for Preliminary Injunction. Upon consideration of plaintiffs' Motion, the submissions of the parties, the arguments presented at the hearing on the Motion held on June 2, 1994, for the following reasons, plaintiffs' Reinstated Motion for Preliminary Injunction will be denied.

 I. THE PARTIES

 Plaintiffs in this action are ACS Enterprises, Inc. ("ACS"), a multi-channel television programming distributer, and several apartment building owners: (1) Ashton Apartments, L.P. and Dr. Yuh S. Yeh, the general partner of Ashton Apartments; (2) Chris J. Gigliotti, William A. Meehan, and Frank J. Montemuro, Jr., partners doing business as Brookshire Trace; (3) Chestnut Hill Associates, L.P. and Winthrop Financial Associates, a public limited partnership that is the general partner of Chestnut Hill Associates; (4) David A. Goldstein, owner of Cliveden Hall Apartments; (5) Park Drive Manor, L.P. and PDM Realty Associates, L.P., the general partner of Park Drive Manor; and (6) Andover Associates and Robert Rodin, the general partner of Andover Associates (collectively the "Property Owners").

 Defendants are Comcast Cablevision of Philadelphia, L.P., a cable television operator franchised by the City of Philadelphia, and Comcast Corporation, which plaintiff alleges is a general partner of Comcast Cablevision (collectively "Comcast" or "defendants"). Comcast Cablevision's Vice President, however, states that Comcast Cablevision of Philadelphia, Inc., and not Comcast Corporation, is the general partner of Comcast Cablevision of Philadelphia, L.P.

 II. TENANTS' RIGHT TO CABLE TELEVISION ACT -- A SUMMARY

 The Act permits a cable television franchisee, upon a request from a tenant in a multi-unit apartment building, to "take" an easement or right-of-way in the building large enough to wire the entire building for cable television service. If a tenant of an apartment building requests CATV services, and the CATV operator decides to provide service, the operator must provide the landlord with notice of its intention to invoke the Act. The operator must also submit a written proposal to the landlord "outlining the nature of the work to be performed and including an offer of compensation for loss in value of property given in exchange for the permanent installation of CATV facilities." Id. § 250.504-B. Additionally, the proposal must include a statement from the operator that it is liable to the landlord for any physical damage; set forth the means by which the reasonable installation requirements of the landlord are to be met; and state the time period for installation and the security to be provided. Id.

 The Act provides for a forty-five day negotiation period during which the landlord and operator are to negotiate an agreement for the installation of CATV service. Id. At any time prior to the expiration of the forty-five day period, the landlord may give the operator written notice that it requires greater compensation or believes that the terms of the work to be performed are unacceptable. Id. § 250.506-B(b)(1). At the end of the forty-five day period, if no agreement has been reached, the operator must notify the landlord of the terms that the operator finds to be unreasonable and must accompany this notification with a request for arbitration. Id. § 250.506-B(b)(2). Arbitration proceedings pursuant to the Act must be conducted in accordance with the rules of the American Arbitration Association and the arbitrators must apply the requirements of the Act "relating to time, presumptions and compensation for loss of value." Id. § 250.506-B(b)(3). Either party may appeal the arbitration award to a Pennsylvania Court of Common Pleas, but only with respect to the amount of compensation for loss of value or damage to property. Id. § 250.506-B(b)(4). A CATV operator may enforce the right to install service pursuant to the conditions of the Act by bringing a civil action in state court. Id. § 250.504-B.

 III. PROCEDURAL BACKGROUND

 A. Defendants' Motion to Dismiss/Abstain

 In their Amended Complaint, plaintiffs asked the Court to enjoin defendants' invocation of the Act under a variety of federal and state constitutional provisions. On April 4, 1993, by Motion for Preliminary Injunction, plaintiffs moved for an immediate injunction enjoining the defendants from invoking the provisions of the Act under a more limited number of federal and state constitutional provisions. On May 6, 1993, the parties entered into an agreement whereby defendants agreed not to invoke the Act's provisions against the property owners until five days after the date that the Court ruled on plaintiffs' Motion for Preliminary Injunction.

 On June 4, 1993, defendants filed a Motion to Dismiss the Complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Subsequently, plaintiffs and defendants agreed to combine the ...


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