United States District Court, M.D. Pennsylvania
John E. Jones III
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).
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:
(1) establish a national policy concerning cable
(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
(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
(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
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).
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).
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 ...