Media General Cable of Fairfax, Inc. v. Sequoyah Condominium Council of Co-Owners

991 F.2d 1169, 1993 WL 88081

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 29, 1993
• Docket: No. 90-2399
• Status: Published

Opinions

OPINION

ERVIN, Chief Judge:

Media General Cable of Fairfax, Inc. (Media) a cable television franchisee, brought this declaratory action under § 621(a)(2) of the Cable Communications Policy Act of 1984 (“the Cable Act”)¹ seeking a declaration that it was entitled to install its cable wires in compatible easements on the Sequoyah Condominium’s (Se-quoyah) commons area. The district court held that the Act did not (1) permit Media to compel access to private utility easements in order to reach individual unit owners at Sequoyah and (2) authorize a taking of this private property, nor provide just compensation for such a taking.² Media appeals and we affirm.

I.

In September 1982 Media was granted a nonexclusive franchise by Fairfax County, Virginia to operate a cable television system. In November 1988, Media allegedly was asked by certain residents of Sequoyah Condominium to provide cable service within the condominium complex, located in Fairfax County and comprising more than 1000 individual townhouse and other residential units. Sequoyah’s Council of Co-Owners, (Sequoyah), is an unincorporated association to which all of its residential owners belong and is responsible for the governance and management of the complex.

AMSAT Communication, Incorporated, (AMSAT) by way of permissive intervention³, operates a satellite master antenna television system. AMSAT does not hold any local franchise of the type held by Media, but rather operates through the use of satellite and master antenna facilities located on private property within a residential complex, by agreement with such complex, and distributes the signals so received to residents through wires located within the complex. In 1982, a predecessor of AMSAT entered into an exclusive agreement with Sequoyah to provide cable television service.

The Master Deed of the Sequoyah complex dated September 14, 1972 provides for—

a blanket easement upon, across, over and under all of the property for ingress, egress, installation, replacing, repairing, and maintaining a master television antenna system and all utilities including, but not limited to, water, sewers, telephones and electricity. By virtue of this easement, it shall be expressly permissible for the providing utility company to erect and maintain the necessary poles and other necessary equipment on said property and to affix and maintain utility wires, circuits and conduits on, above, across and under the roofs and exterior walls of the residents [.] [sic] [Notwithstanding anything to the contrary contained in this paragraph, no sewers, electrical lines, water lines, or other utilities may be installed or relocated on said property except as initially programmed and approved by the Declarant, or thereafter approved by the Declarant, or thereafter approved by the Council. Should any utility furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, the De-clarant or Council shall have the right to grant such easement on said property without conflicting with the terms hereof.

In accordance with the last sentence of that blanket easement, Sequoyah granted specific utility easements in favor of Virginia Power and Electric Company (Virginia Power), Chesapeake and Potomac Telephone Company (C & P), and AMSAT. All of those grants antedate the Act. The Master Deed grant is seemingly in perpetuity, as are, for practical purposes, the grants in favor of Virginia Power and C & P. On the other hand, the grant in favor of the predecessor of AMSAT is specifically limited to the duration of the agreement between AMSAT and Sequoyah. The initial term of that agreement expired on March 15, 1990. However, the agreement provides for automatic renewal for three successive four-year terms unless either party gives notice to the contrary. Apparently, the first four-year renewal is presently in effect. The grant in favor of AM-SAT is exclusive with regard to cable television.

In 1989, pursuant to the Cable Act, Media requested Sequoyah to allow Media to place Media’s lines in the common areas of the Sequoyah complex through master and other easements described supra. Sequoy-ah, citing to the exclusivity provision in its contract with AMSAT, refused so to do, despite the alleged desires of a majority of Sequoyah’s residents to have Media provide such service. Thereafter, Media instituted this action, seeking declaratory and equitable relief to require Sequoyah pursuant to the Cable Act to permit Media to provide cable service to those residents who desire it.

The district court refused to grant such relief, holding that the right of access provided by section 621(a)(2) of the Cable Act is limited to easements which have been dedicated for public use and holding that none of the easements granted to Virginia Power, C & P or AMSAT or in the Master Deed are easements dedicated for public use. Upon Media’s within appeal, we affirm the decision of the district court.

II.

After this case was instituted by Media, AMSAT moved to intervene. While the district court determined that AMSAT was not entitled to intervene as a matter of right under Federal Civil Rule 24(a)(2), it did grant permissive intervention under Federal Civil Rule 24(b)(2). No party questions, in this appeal, the district court’s intervention rulings.

III.

The district court also ruled that section 621(a)(2) of the Act creates an implied private right of action in favor of a cable operator seeking access to compatible easements within its franchise area, largely relying upon Centel Cable Television Co. v. Admiral’s Cove Associates, Ltd., 835 F.2d 1359 (11th Cir.1988). In Admiral’s Cove, Judge Fay applied the four-step test set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). The court below similarly applied that Cort v. Ash test and, like the Eleventh Circuit in Admiral’s Cove, held that the Cable Act created a private cause of action. We agree.

Section 621(a)(2) of the Cable Act provides as follows:

(2) Any 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, except that in using such easements the cable operator shall ensure—

(A) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system;

(B) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both; and

(C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator.

In Cort v. Ash, Justice Brennan set forth the following four-step inquiry concerning whether a federal statute creates an implied private cause of action:

First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088 (citations omitted; emphasis in original).

There is little question but that Media is within the class of persons for whose benefit the Cable Act was enacted.⁴ Nor is there any question that the cause of action Media asserts in this case is not one regulated normally by state law. Further, the legislative history indicates that Congress intended section 621 to enable operators of cable television systems to “piggy back” upon easements “dedicated for electric, gas or other utilities.” H.R.Rep. 934, 98th Congress, 2d Sess. 59, reprinted in 1984 U.S.C.C.A.N. 4655, 4696. Accordingly, this action passes muster under the Cort v. Ash standards.⁵

IV.

The court below, in its second opinion, concluded that the only compatible easements covered by section 621(a)(2) of the Cable Act are those dedicated for a public use.

There is no dispute that the four existing easements at Sequoyah are private easements, rather than public rights-of-way or dedicated easements. The district court, believing that the placement of Media’s cables along a private easement would constitute a compensable taking, then addressed the issue of whether the Act authorized such a taking, and concluded that it did not.

While the district court devoted considerable attention to questions of the takings and just compensation under the Fifth Amendment, in my view, Judge (now Chief Judge) Sloviter of the Third Circuit was right in suggesting that it is more orderly to begin by deciding whether the statute gives a cable franchisee a substantive right of access to multi-unit dwellings. Cable Invs., Inc. v. Woolley, 867 F.2d 151, 154 (3d Cir.1989).

Therefore, we will adopt the Cable Invs. approach by beginning our analysis of the issue by examining the key language of section 621(a)(2). It reads, in part:

(2) Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is (sic) 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) (1991).

To our mind, the plain language of section 621(a)(2) shows that Congress intended to do no more than to authorize a franchisee (such as Media) to use public lands, namely public rights-of-way and easements that have been dedicated to public use.

The first ground supporting this conclusion stems from basic principles of statutory construction. Media is asking us to single out the word “dedicate” as used in section 621(a)(2) and give it special meaning. We are also requested to use the layperson’s definition of “dedicated,” which would in essence be the same as “designated.” Under Media’s interpretation, any easement that has been designated or reserved for a utility’s use would meet the definition of being dedicated. Black’s Law Dictionary, however, defines “dedicate” as follows:

To appropriate and set apart one’s private property to some public use; as to make a private way public by acts evincing an intention to do so.

Black’s Law Dictionary, 412 (6th ed. 1990).

The same dictionary further defines “dedication” as follows:

The appropriation of land, or an easement therein, by the owner, for the use of the public, and accepted for such use by or on behalf of the public.... A deliberate appropriation of land by its owner for any general and public uses, reserving to himself no other rights than such as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted.

Id.

Thus, the word “dedicated” has a more restricted and legally significant definition in the property-law context than in the layman’s vocabulary. It is generally accepted that where Congress uses technical words, or terms of art, those words are to be construed by reference to the art or science involved. Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 2231, 41 L.Ed.2d 1 (1974); Greenleaf v. Goodrich, 101 U.S. 278, 284, 25 L.Ed. 845 (1880). Since “dedicated” is a term of art with reference to property matters, we should use that definition in preference to the ordinary definition found in Webster’s.

Moreover, if we adopted Media’s proffered definition of “dedicated,” we would be reading the word in a vacuum. Yet the “dedicated” we seek to interpret here is found not in a vacuum, but rather in the midst of a statute. We therefore must read it in the context of that statute. Section 621(a)(2) provides that a cable system is authorized “over public rights-of-way, and through easements, which ... have been dedicated for compatible uses.... ” 47 U.S.C. § 541(a)(2) (1988) (emphasis added). Construing these clauses together, it would be more consistent to define “dedicated” according to its property-related definition, which requires, inter alia, that the easement be public, than to define “dedicated” to include private easements when the rights-of-way are required to be public.

Media suggests that the definition of “dedicated” should not be limited to a technical, common-law property sense, and that the Federal Communications Commission’s reading of the word in another context as synonymous with “designated” or “granted” should be given considerable weight. With all respect, we disagree.

All of the above considerations support the district court’s conclusion that section 621(a)(2) does not allow cable companies to force landlords or property owners’ associations to allow cable companies to use easements on their private property. They support the grounds carefully laid out by the district court in its well-reasoned opinion.

Finally, we do not believe that we can ignore the precise words of Congress in favor of trying to discern and follow a rule that would promote some ill-defined goal of “national uniformity.”

While we believe that the express wording of section 621(a)(2) is sufficient to support the district court’s decision alone, we also find the Cable Act’s legislative history persuasive, especially Congress’s failure to enact section 633. Section 633, which Congress deleted from the Cable Act, would have given mandatory access for a cable franchisee to serve “the owner of a unit within a condominium apartment building or other residential complex” despite the objection of the owner of the surrounding common areas. See H.R.Rep. No. 934, 98th Cong.2d Sess. 90 reprinted in 1984 U.S.C.C.A.N. 4665, 4717. For an illuminating discussion of the legislative history of the Cable Act, see Cable Invs., Inc. v. Woolley, 867 F.2d 151, 155-159 (3d Cir. 1989).

Another interesting point not raised by the parties is that the broad congressional purpose of the Cable Act was written before the final passage of the Act. It was part of the original bill which contained § 633.

Careful study of the House Bill as originally proposed and an understanding of the innerworkings of the statute make it clear that Congress was trying to achieve two different things in the two different sections. Section 633 directly addressed the issue before us today: whether property owners’ associations or apartment landlords may prevent the cable company from coming onto their private property to provide cable service to others.⁶ The focus in § 633 was on the rights of individuals in single residential units to be able to receive cable. Section 621, on the other hand appears to give franchise holders the ability to make use of public rights of way and easements which are being used by similar utilities such as telephone companies and power companies. The emphasis on the “private” in section 633 and “public” in section 621 corresponds to the different purposes of each section. Since § 633 did not pass, we do not believe that we should confuse the different purposes and allow cable companies to sneak in under § 621(a)(2) for protection. Congress could have passed section 633. It chose not to. We agree with the words of the Third Circuit:

What is significant for our purposes is that section 633 was dropped from the bill that was passed by Congress. The fact that section 633 was not part of the Act as it ultimately emerged from Congress is a strong indication that Congress did not intend that cable companies could compel the owner of a multi-unit dwelling to permit them to use the owner’s private property to provide cable service to apartment dwellers. See Russello v. United States, 464 U.S. 16, 23-24 [104 S.Ct. 296, 301, 78 L.Ed.2d 17] (1983) (“Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.”).

Cable Invs. Inc. v. Woolley, 867 F.2d 151, 156 (3d Cir.1989).

Thus, to the extent that the legislative history and the Cable Act’s stated purpose indicate that Congress wanted to allow forced takings of private easements, those normal guides to legislative intent are substantially weakened in light of the deletion of section 633.

After examining the case law in the area, in addition to the Third Circuit’s opinion in Cable Investments, discussed above, we embrace the result (if not all of the reasoning) reached by the Eleventh Circuit in Cable Holdings of Ga., Inc. v. McNeil Real Estate, 953 F.2d 600 reh’g en banc denied, 988 F.2d 1071 (11th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 182, 121 L.Ed.2d 127 (1992) a case factually on all fours with this case. The Cable Holdings court began by recognizing that it had a duty to “avoid any interpretation of a federal statute which raises serious constitutional problems or results in an unconstitutional construction.” Id. at 604 (citing Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988)). It went on to state that

If Section 621(a)(2) authorized Smyrna Cable (the cable franchisee) to construct its cable system on McNeil’s private property regardless of the presence of any compatible easements, we would have little difficulty in finding the provision in violation of the Fifth Amendment. After all, under such facts section 621(a)(2) would be indistinguishable from the New York statute analyzed (and declared unconstitutional) in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

In Cable Holdings, the court went on to opine that section 621(a)(2) is capable of being interpreted in such a way as to avoid what it described as “substantial constitutional difficulties.” Cable Holdings, 953 F.2d at 602. It found that “Congress did not intend section 621(a)(2) to reach wholly private easements so that franchised cable companies could access the interiors of private apartment buildings.” Id at 606. This construction was believed to be consistent with the Eleventh Circuit’s earlier decisions in Centel Cable Television Co. v. Admiral’s Cove Assocs., 835 F.2d 1359 (11th Cir.1988), and Centel Cable Television Co. v. Thos. J. White Devo. Corp., 902 F.2d 905 (11th Cir.1990), and avoided the constitutional problems raised by the broader interpretation.

By way of summary, the court held: [W]e have concluded that [s]ection 621(a)(2) provides a franchised cable company with the right to access only those easements which have been dedicated for general utility use, whether by plat re-cordation for a residential subdivision or otherwise. The alleged easements existing on McNeil’s property have not been dedicated by McNeil for general utility use. Rather, these easements were privately granted by McNeil in order to allow limited rights of access to particular entities. Therefore, under section 621(a)(2) of the Cable Act, Smyrna Cable has no right to forcibly access and occupy those easements.”

Cable Holdings, 953 F.2d at 610.

We recognize the validity of the fear that a broader reading of section 621(a)(2) could raise serious constitutional questions.

While this is a difficult case we prefer to resolve the statutory interpretation issue as the district court did. For that reason, we would affirm the district court’s holding that the Act did no more than to authorize a franchisee to use public lands, namely, public rights of way and easements that have been dedicated to public use. Since our solution does not necessitate a determination of the takings question, we would leave that thorny issue for another day and a different set of facts.

Y.

For the reasons set forth above, the decision of the district court that § 621(a)(2) of that Cable Act is limited to easements which have been dedicated for a public use is

AFFIRMED.

1 . The Act is codified at 47 U.S.C. §§ 521-559 (1988).

2 . For the district court's opinions, see Media General Cable of Fairfax, Inc. v. Sequoyah Condo. Council of Co-Owners, 721 F.Supp. 775 (E.D.Va.1989) and 737 F.Supp. 903 (E.D.Va.1990). The second opinion was issued after counsel, at the request of the court, stipulated as to a number of uncontroverted facts.

3 .As to that intervention, see the discussion infra in Part II of this opinion.

4 . See Booth American Co. v. Total TV of Victor-ville, No. CV-91-2286-RSWL (C.D.Cal.1992); Elliot & Assocs. Builders Developers, Inc. v. Spot-sylvania Television Cable Network, Inc., 12 Va. Cir. 81 (1987).

5 . In Cable Investments, Inc. v. Woolley, 867 F.2d 151, 154 (3rd Cir.1989), the Third Circuit, while noting Judge Fay’s 1988 opinion in Admiral’s Cove, did not find it necessary to decide the implied cause of action issue.

6 . Section 633 had a provision that dealt with the issue of what happens when one cable company is already providing service, and another cable company wants to come and offer competitive service. Section 633(h) would have provided that the federal right of access conferred by section 633 would not apply in situations where the landlord provided tenants with an equivalent diversity of information service. See Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund VI, Ltd., 678 F.Supp. 871, 873-74 (N.D.Ga. 1986), rev'd, 953 F.2d 600 (11th Cir.), cert. denied, — U.S. -, 113 S.Ct. 182, 121 L.Ed.2d 127 (1992).