In re Clover Cable Systems, Inc.

488 A.2d 223, 199 N.J. Super. 8, 1985 N.J. Super. LEXIS 1175
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 11, 1985
StatusPublished

This text of 488 A.2d 223 (In re Clover Cable Systems, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Clover Cable Systems, Inc., 488 A.2d 223, 199 N.J. Super. 8, 1985 N.J. Super. LEXIS 1175 (N.J. Ct. App. 1985).

Opinion

PER CURIAM.

Clover Cable Systems, Inc. appeals from an order of the Board of Public Utilities, Office of Cable Television (Board), dismissing its petition for a certificate of approval to construct, operate and maintain a cable television system in Upper Deer-field Township, Cumberland County, New Jersey. The basis for the appeal is Clover’s contention that the Board was re[11]*11quired to conduct a plenary hearing before ruling on its application because there were disputed questions of fact.

Clover holds certificates of approval to operate in three Cumberland County municipalities, i.e., Commercial, Downe and Maurice Fiver Townships. In July 1982 it filed for municipal consent to operate in Upper Deerfield Township which is not contiguous to the municipalities for which it already has approvals. Two other companies also filed applications with that township. Hearings were held by the township and it then gave its consent to Group W Cable, Inc. (Group W), one of appellant’s competitors. Shortly thereafter, Group W sold its television systems to respondent Cablentertainment of New Jersey-V (Cablentertainment) which had joined in the consent application with Group W.1

Cablentertainment then filed a petition with the Board seeking a certificate of approval to operate in Upper Deerfield.2 Clover also filed a petition with the Board for certificates of approval to operate in Upper Deerfield and in three other townships in Cumberland County, i.e., Deerfield, Fairfield and Lawrence Townships as part of its “proposed regional system” of “six townships.” Deerfield and Fairfield are contiguous to Upper Deerfield while Lawrence Township is not. Clover did not, however, have consents from any of these municipalities. Clover’s application to operate in Upper Deerfield was not referred to the Office of Administrative Law as a contested case, but the disputed applications to operate in the other three townships were. The Board reviewed the record, made findings and dismissed Clover’s regionalization petition involving Upper Deerfield. On the same day the Board issued a certificate of approval to Cablentertainment for construction and [12]*12operation of a cable television system in Upper Deerfield Township. Clover filed an appeal with this court to challenge the Board’s dismissal of its petition. We denied its application for a stay of construction of cable television facilities in Upper Deer-field in a June 21, 1984 order in which we provided that Cablentertainment “shall proceed with the construction and installation of the television system in the Township of Upper Deerfield at its own risk and peril.” We thereafter also denied summary disposition. See R. 2:8-3(b).

Clover argues that because there were disputed fact questions the Board erred in refusing to grant a hearing. Clover’s petition for its “proposed regional system” set forth the following grounds for approval of certification on a regionalization basis: (1) it already held certificates of approval for three Cumberland County townships (Commercial, Downe and Maurice River Townships — none of which are contiguous to Upper Deerfield); (2) it had completed construction in one of those townships, and expected completion in the other two by October 30, 1983 and January 1984; (3) the award of certificates in “Lawrence, Fairfield, Deerfield and Upper Deerfield to Clover Cable Systems, Inc. would form a contiguous and cohesive regional network connecting all of the rural communities of Cumberland County” (emphasis supplied); (4) the award would tie together the high schools in the region and “its local origination programming would also provide a vehicle for exchange of ideas and programs among county residents with common interests;” (5) these four townships “would serve as the logical completion of Clover’s regional system,” and (6) “one cable television company would be both financially and technically in a better position to provide adequate cable television service for residents of the area.”

Cablentertainment moved to dismiss Clover’s Upper Deerfield petition on the ground that Clover failed to establish a prima facie case for a “regionalization” petition, and alternatively sought dismissal on the ground of laches because Clover’s petition was not filed until seven months after Cablentertain-[13]*13merit’s petition was filed and more than a year after the initial resolution of denial by the Upper Deerfield Township governing body. Upper Deerfield Township also opposed Clover’s application. Clover filed an answer to Cablentertainment’s motion to dismiss taking the position that its petition established a prima facie case of regionalization.3

The Board did not conduct a hearing on Clover’s petition, but dismissed it by order dated March 6, 1984. The Board found that Clover’s claim for a certificate of approval on grounds of regionalization was weak, insufficient, self-promoting and contained no solid factual framework. The Board stated that it had considered Clover’s petition “in light of six factual issues it applies to petitions based on regionalization.” The Board found that the award of the certificate to Cablentertainment would not deter development of adequate cable television service and would not cause an unreasonable duplication of services in the area. See N.J.S.A. 48:5A-17b. It also pointed out that Clover did not even have a franchise in a municipality contiguous to Upper Deerfield4 and that Upper Deerfield strongly objected to the petition. Although it accepted the factual allegations in Clover’s petitions, it held that the petition, answers and supplemental papers did not present sufficient proof of disputed facts to justify a plenary hearing.

Clover argues on this appeal that it was entitled to a hearing before its petition was dismissed. As a preliminary matter we note that although the Cable Television Act, N.J.S.A. 48:5A-1, et seq., does not expressly provide for a direct application on regionalization grounds, by virtue of Supreme Court [14]*14construction it has been held that the Board possesses the authority under N.J.S.A. 48:5A-17b to determine such applications. Clear TV Cable Corp. v. Public Utility Comm’rs., 85 N.J. 30, 45-47 (1981). Hence, if qualified, Clover could apply for certification of approval on regionalization grounds. In Clear TV Cable Corp., the court stated:

If we are to give effect to regional factors as intended by the Legislature, 17(b) must be broadly construed. Therefore, we hold that the Board must have the power under that section, regardless of the lack of municipal consent, to issue a certificate covering a municipality to a company already operating in a neighboring municipality (whether under 17(a) or 17(f)) and to do so either (i) upon appeal from that municipality’s denial of consent (without the restriction of the "arbitrary” standard of section 17(d)), (ii) upon that company’s participation as a competitor/objector under section 16(b) to the issuance of the certificate to another company, or (iii) upon direct application to the Board for such regional certification. [85 N.J. at 47].

When Clover was denied municipal consent by Upper Deerfield (which awarded such consent to Cablentertainment) it was entitled to appeal that denial under N.J.S.A.

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Clear Television Cable Corp. v. Board of Public Utility Commissioners
424 A.2d 1151 (Supreme Court of New Jersey, 1981)
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422 A.2d 780 (New Jersey Superior Court App Division, 1980)
Paterson Publishing Co. v. New Jersey Bell Telephone Co.
122 A.2d 599 (Supreme Court of New Jersey, 1956)
Matter of Controlled Cable Corp.
472 A.2d 130 (Supreme Court of New Jersey, 1984)

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Bluebook (online)
488 A.2d 223, 199 N.J. Super. 8, 1985 N.J. Super. LEXIS 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-clover-cable-systems-inc-njsuperctappdiv-1985.