Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund VI, Ltd.

• Decision Date: 23 March 1993
• Docket Number: No. 91-8032,91-8032
• Citation: 988 F.2d 1071
• Parties: CABLE HOLDINGS OF GEORGIA, INC., Plaintiff-Appellee, v. McNEIL REAL ESTATE FUND VI, LTD., Woodsong Apartments d/b/a Lakes Apartments, Robert A. McNeil Corporation, ODC Communications Corporation, Woodsong Associates, Ltd., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1071

988 F.2d 1071

CABLE HOLDINGS OF GEORGIA, INC., Plaintiff-Appellee, v. McNEIL REAL ESTATE FUND VI, LTD., Woodsong Apartments d/b/a Lakes Apartments, Robert A. McNeil Corporation ODC Communications Corporation, Woodsong Associates, Ltd., Defendants-Appellants.

No. 91-8032.

United States Court of Appeals Eleventh Circuit.

March 23, 1993.

Deborah C. Costlow, Thomas C. Power, Winston & Strawn, Washington, DC, for defendants-appellants.

Peter Crane Canfield, Dow Lohnes & Albertson, Atlanta, GA, Howard Graff, Neal S. Barlia, Baer Marks & Upham, New York City, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia; Richard C. Freeman, Judge.

Prior report: 11th Cir., 953 F.2d 600.

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, and CARNES, Circuit Judges. ^*

PER CURIAM:

On April 9, 1992, through clerical error, an order issued denying appellee's petition for rehearing and suggestion of rehearing en banc. The order was issued in error because the mandate had been withheld and the court had not yet been polled on the suggestion of rehearing en banc. A poll now having been conducted at the request of a member of this court in active service on the reconsideration of this case en banc, and a majority of the judges in active service not having voted in favor of it, the appellee's petition for rehearing and suggestion of rehearing en banc is DENIED.

TJOFLAT, Chief Judge, dissenting:

I respectfully dissent from the court's decision to deny the petition for rehearing en banc for the following two reasons. First, as I discuss in part II, this case presents the issue of whether the Fifth Amendment's Just Compensation Clause is self-executing. The panel, by proceeding as if the clause is not self-executing, has established a rule with far-reaching implications. According to the panel--and apparently now a settled matter in this circuit--state and federal statutes that operate to take private property but which do not explicitly provide for just compensation are unconstitutional. This approach abrogates in this circuit Supreme Court precedent holding that the Just Compensation Clause is self-executing and, therefore, that legislation need not explicitly provide for just compensation in order to be constitutional.

Second, as discussed in part III, while the panel reaches its result by distinguishing two Eleventh Circuit decisions, Centel Cable Television Co. v. Thos. J. White Development Corp., 902 F.2d 905 (11th Cir.1990), and Centel Cable Television Co. v. Admiral's Cove Associates, Ltd., 835 F.2d 1359 (11th Cir.1988), it does so based on an erroneous interpretation of the facts in these cases. On the face of its opinion, therefore, the panel appears fairly to read and distinguish our precedent. Yet, when the panel's interpretations are laid along side the facts of Thos. J. White and Admiral's Cove, the force of these prior decisions becomes apparent. Correctly represented, our prior cases cannot be distinguished. Moreover, had the panel followed Thos. J. White and Admiral's Cove, it would have been compelled to reach a different result. I believe the en banc mechanism was designed precisely for these circumstances. I therefore dissent from the court's denial of rehearing en banc.

I.

A.

Section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521-559 (1988) (the Cable Act), ¹ grants cable television franchises the right to access certain rights-of-way and easements that are necessary to construct cable systems. This case presents the issue of whether this right extends to existing cable, telephone, and power easements "which reach and access the interiors of [a developer's] buildings." Cable Holdings of Ga., Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600, 603 (11th Cir.1992) (McNeil III), cert. denied, --- U.S. ----, 113 S.Ct. 182, 121 L.Ed.2d 127 (1992). This issue raises significant concerns for developers who desire to control the accessibility of cable services on their properties and for cable franchisees who wish to avoid the economic consequences of such control.

McNeil Real Estate Fund VI, Ltd., Woodsong Associates, Ltd., and Robert A. McNeil Corporation (collectively McNeil), are the owners of two apartment complexes. Cable Holdings of Georgia, Inc. (Cable Holdings) claimed a right of access under section 621(a)(2) to easements granted by McNeil to specific utility companies and a competing video programming provider serving the complexes. ² McNeil rejected Cable Holdings' claimed right of access, at least to the extent that Cable Holdings claimed a right to access the interiors of McNeil's multiple-unit residences. Cable Holdings filed suit in the United States District Court for the Northern District of Georgia seeking declaratory and injunctive relief to gain access to the easements. ³ On October 10, 1986, the district court granted partial summary judgment for Cable Holdings, finding that the Cable Act provided a right of access to all compatible easements. Cable Holdings of Ga., Inc. v. McNeil Real Estate Fund VI, Ltd., 678 F.Supp. 871, 875 (N.D.Ga.1986) (McNeil I). On September 28, 1989, the court considered "whether [compatible] easements exist upon which plaintiff may piggyback its system." Cable Holdings of Ga., Inc. v. McNeil Real Estate Fund VI, Ltd., No. 1:85-CV-3712-RCF, 1989 WL 222739, at * 1 (N.D.Ga. Sept. 28, 1989) (McNeil II). The court found that McNeil had granted easements extending into the interiors of the apartment complexes to a competing video programming provider, and that "under the Cable Act, [Cable Holdings could] piggyback its cable system along [the competing video programming provider's] system." Id. at *2.

On appeal, the panel addressed the district court's interpretation of section 621(a)(2). Finding that the Cable Act did not authorize cable franchises to burden the relevant easements, the panel reversed.

B.

The resolution of this case rests on the reach of section 621(a)(2). Both the district court and the panel identified the same language from section 621(a)(2) as the focal point of the controversy: "[a]ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which [are] within the area to be served by the cable system and which have been dedicated for compatible uses...." 47 U.S.C. § 621(a)(2). Hoping to carve the relevant easements out of section 621(a)(2)'s scope, McNeil argued before the district court that (1) section 621(a)(2) grants rights only to dedicated public easements, (2) the easements involved were non-dedicated private easements, and (3) even if easements existed that reached into the apartment buildings, such easements would be private easements outside of section 621(a)(2)'s scope. The district court summarily rejected McNeil's argument, stating that "defendants have not pointed to any legislative history supporting their strained interpretation of section 621(a)(2)." Id. at 873. ⁴ The district court, however, believed that

[i]f Congress did not provide for just compensation for the taking of property that might occur when a cable operator exercises its right of access, then section 621(a)(2) either (1) would be unconstitutional, or (2) [could not] be found to grant the access right plaintiff claims it does.

Id. at 874 n. 3. After reviewing the Cable Act's statutory language and legislative history, the district court held that the Cable Act provided for the claimed right of access and just compensation. Id. at 874. In its November 27, 1990 order, the district court, relying on Thos. J. White, 902 F.2d at 907, held that no compensation was due.

C.

The panel's analysis began with the canon of construction that requires courts to "avoid any interpretation of a federal statute which raises serious constitutional problems or results in an unconstitutional construction." McNeil III, 953 F.2d at 604. Applying this canon, the panel identified "serious questions regarding the potential unconstitutional taking of [the developer's] private property" if section 621(a)(2) were construed to reach private easements. Id. Faithful to the canon, the panel diligently strove to avoid what it considered an unconstitutional construction of the Cable Act. As discussed below, however, the panel misunderstood the nature of the Just Compensation Clause, incorrectly and unnecessarily leading it to address its just compensation issue.

II.

The panel believed that refraining from reaching the just compensation issue was necessary to avoid an unconstitutional construction of the Cable Act. McNeil III, 953 F.2d at 604. This canon of construction rests on the presumption that legislators intend to promulgate only constitutional legislation. ⁵ The panel sought to uphold this principle by construing section 621(a)(2) to avoid a taking of private property. This approach was necessary only if the failure of the Cable Act explicitly to provide for compensation would render the statute unconstitutional. ⁶ Yet, even if a taking would result, section 621(a)(2) would not be unconstitutional. The panel, therefore, erred in its initial premise and should not have applied the canon to limit the section's operation. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985) ("Of course, the fact that courts should not decide constitutional issues unnecessarily does not permit a court to press statutory construction 'to the point of disingenuous evasion' to avoid a constitutional question." (quoting United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985)).

A.

In applying this canon of construction, the panel focused on limiting the application of section 621(a)(2) to avoid a Fifth Amendment taking. The panel stated that "[w]hen the government appropriates an owner's right to exclude another's physical presence without...