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ZITO Media, L. P. v. Haggerty

United States District Court, M.D. Pennsylvania

May 29, 2018

ZITO MEDIA, L.P., Plaintiff,
v.
JAMES M. HAGGERTY, FELICE C. HAGGERTY, JOSEPH HAGGERTY, and MICHELE HAGGERTY, Defendants.

          MEMORANDUM

          Hon. John E. Jones III

         Presently pending before the Court are cross Motions for Summary Judgment. (Docs. 14 & 17). For the reasons that follow, we shall deny Plaintiff's Motion, (Doc. 14), and grant Defendants' Motion, (Doc. 17).

         I. FACTUAL BACKGROUND

         This case raises an unsettled question of law related to the Cable Communications Policy Act of 1984 (“Cable Act”). 47 U.S.C. §§ 521, et seq. The Cable Act amended the Communications Act of 1934, 47 U.S.C. §§ 151, et seq., with six stated purposes: to

(1) establish a national policy concerning cable communications;
(2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community;
(3) establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable systems;
(4) assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public;
(5) establish an ly process for franchise renewal which protects cable operators against unfair denials of renewal where the operator's past performance and proposal for future performance meet the standards established by this subchapter; and
(6) promote competition in cable communication and minimize unnecessary regulation that would impose an undue economic burden on cable systems.

47 U.S.C. § 521. At issue before us is § 541(a)(2) of the Cable Act, which provides that “[a]ny 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 have been dedicated for compatible uses . . . .” 47 U.S.C. § 541(a)(2). In this case, all material facts being undisputed, Plaintiff, Zito Media, L.P. (“Zito”), seeks to install fiber optic cables on an electric line easement on a parcel of undeveloped property owned by Defendants, James M. Haggerty, Felice C. Haggerty, Joseph Haggerty, and Michele Haggery (“the Haggertys”).

         On July 19, 2017, Zito Media Communications, LLC, a sister company of Zito, was granted a cable franchise by Wysox Township, in Bradford County, Pennsylvania. (Id. at ¶ 4). Zito Media Communications, LLC, assigned the franchise agreement to Zito on August 1, 2017. (Id. at ¶ 6). Zito holds itself out as a provider of high-speed broadband and internet, digital cable television, and digital voice communications services for customers in a number of states, including Pennsylvania. (Doc. 18, ¶ 9).

         The Haggertys, as noted, own an undeveloped parcel of property in Wysox Township, which was conveyed to them on January 18, 2000. (Doc. 16, ¶ 8). The Haggertys' property is traversed by an electric utility easement containing a number of utility poles, electric transmission wires, and other facilities which are owned by Pennsylvania Electric Company (“Penelec”), a subsidiary of FirstEnergy Corporation. (Id. at ¶ 10). The easement was originally granted by the Haggertys' predecessors in title in 1944 to a predecessor entity of Penelec known as Northern Pennsylvania Power Company (“NPPC”). (Id. at ¶ 11). The easement granted NPPC, and its successors and assigns, the right to “construct, maintain, and operate an electric line consisting of H frames, conductors, overhead and underground lightning protective wires, private communications wires, guys, push braces, and other necessary apparatus and equipment. . . .” (Id. at ¶ 13). The easement further granted NPPC and its successors and assigns the right “to install on said line such additional apparatus and equipment as Grantee may deem necessary. . . .” (Id. at ¶ 14).

         Sometime in March 2017, representatives of Zito sought to utilize the easement and to affix its fiber optic cables to Penelec's poles within the easement and subsequently executed an agreement with Penelec obtaining permission to do so. (Id. at ¶ 15; Doc. 18, ¶ 12). The Haggertys have refused to permit Zito access to the easement and have expressly informed Zito ...


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