Cable Investments, Inc. v. Woolley

• Decision Date: 29 December 1987
• Docket Number: Civ. No. 85-1305.
• Citation: 680 F. Supp. 174
• Parties: CABLE INVESTMENTS, INC., Plaintiff, v. Mark WOOLLEY, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

680 F. Supp. 174

CABLE INVESTMENTS, INC., Plaintiff, v. Mark WOOLLEY, et al., Defendants.

Civ. No. 85-1305.

United States District Court, M.D. Pennsylvania.

December 29, 1987.

Harvey Freedenberg, H. Lee Roussel, Robert H. Griswold, McNees, Wallace & Nurick, Harrisburg, Pa., for plaintiff.

L.C. Heim, Dell'Alba, Heim & LeCates, York, Pa., Donald H. Brobst, Roseen, Jenkins & Greenwald, Wilkes-Barre, Pa., Nora Garriote, Mark J. Tauber, Deborah C. Costlow, Piper & Marbury, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

KOSIK, District Judge.

This action was commenced with the filing of a complaint containing twelve counts based on the termination of plaintiff as a provider of cable television programming to the tenants of two apartment complexes either owned, operated or controlled by defendants. Counts I through IV, and VI have been withdrawn. The remaining counts allege violations of plaintiff's free speech rights under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania, Counts V and VII; tortious interference with existing and prospective contractual relations with plaintiff and its subscribers, Count VIII; conversion, Count IX; interference with plaintiff's reasonable expectations to continued access, Count X; and violations of the Pennsylvania Landlord Tenant Act and the Cable Communication Policy Act of 1984, Counts XI and XII.

Four of these counts have been challenged on the eve of trial by the defendants' motion in limine. Specifically, the defendants claim that the complaint fails to state a cause of action upon which the court can grant relief on Counts V and VII. Next, defendants urge that plaintiff has no standing to bring an action under Counts XI and XII, and if standing should be found, 1 what, if any, legal rights to access private property is given to a franchised cable operator under Section 541(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., 2 what, if any, legal rights do franchised cable television operator have under the Pennsylvania Landlord and Tenant Act, 68 P.S. § 250.101 et seq., to access private property.

BACKGROUND

The plaintiff, Cable Investments, Inc., offers cable television in York Township, Pennsylvania, pursuant to a non-exclusive franchise granted to it by the governing body of York Township. As part of its operation, plaintiff provided its service to subscribers to include tenants at apartment complexes known as Coventry at Waterford and King's Arms at Waterford.

Defendant Woolley is an adult with his principal place of business in York. Woolley owns interests in MGM Enterprises, Inc., First Investors General, Inc., Waterford Associates, and Cold Springs Associates. Defendant Waterford Associates owns the aforesaid Waterford apartment complexes.

Since prior to 1979, plaintiff, through its predecessor, Keystone Communicable, Inc., provided cable television to Coventry at Waterford. The programming was provided through signals transmitted via drop lines within individual buildings. Since 1984 plaintiff provided similar service to the apartment complex under construction at King's Arms. Before plaintiff acquired Keystone Communicable, Inc., the latter operated with an understanding as opposed to a written agreement. No written agreement existed, and none was transferred to plaintiff by Keystone in the agreement of purchase. The understanding forming the basis for the service provided that either side could terminate upon sixty 60 days notice to the other party. It was based on this understanding that plaintiff expended money for the installation of necessary equipment to provide its cable service to tenants.

Defendant MGM owns and operates a television system at the Waterford apartments. Defendant Woolley is an officer of MGM and manages its affairs.

During July 1985 plaintiff was informed by counsel for Waterford Associates that it would be required to remove its cable television communications at Coventry and King's Arms. Tenants were advised that plaintiff would no longer be a provider to them. Plaintiff refused to disconnect its system. Regardless, plaintiff has been refused access to the tenants with its programming. Defendants' have threatened plaintiff with arrest and civil or criminal penalties if they enter on the premises of the apartment complexes.

I.

In Counts V and VII of the complaint plaintiff charges the defendants with violating the free speech and First Amendment rights of the tenants and plaintiff under the Federal and Pennsylvania Constitutions. Count V states that the defendants conduct in threatening civil action, arrest and criminal prosecution was sanctioned by and taken under color of state law. Count VII merely alleges that the defendants' conduct and agreements constitute a violation of plaintiff's rights under Article 1, Section 7 of the Pennsylvania Constitution.

Recently, the Supreme Court has stated that since cable television partakes of some aspects of speech and the communication of ideas, it would seem to implicate First Amendment interests. City of Los Angeles v. Preferred Communications, 476 U.S. 488, 106 S.Ct. 2034, 2037, 90 L.Ed.2d 480 (1986). There appears to be no dispute that plaintiff has such rights here. Nor does there appear to be any dispute that an individual including defendants cannot abridge one's First Amendment rights absent some conduct which stems from state action. Indeed, plaintiff asserts that the key issue which must be resolved by the court in considering plaintiff's claim for relief pursuant to the First Amendment is whether "state action" is present.

The Supreme Court has not adopted a single standard to ascertain the existence of state action in the affairs of private parties. A number of approaches have been promulgated through case law, and the district courts are obliged to investigate and determine if the facts are applicable to any one of them. These approaches to determine whether state action exists have been variously characterized, but grouped into three categories: 1 where there is a symbiotic relationship between a private actor and the government, 2 where there is sufficient nexus between the actor and the government, and 3 where the actor has assumed a public function making it an arm of the state for constitutional purposes. Community Medical Center v. Emergency Medical Services, 712 F.2d 878 (3d Cir.1983); Parks v. "Mr. Ford", 556 F.2d 132 (3d Cir.1977); Magill v. Avonworth Baseball Conference, 516 F.2d 1328 (3d Cir.1975); Smith v. Duquesne University, 612 F.Supp. 72 (W.D. Pa.1985), aff'd, 787 F.2d 583 (3d Cir.1986). Assessing the defendants' conduct in light of the three approaches, we must conclude that there was no state action in the relationship of the parties.

In the first instance, there can be no basis for claiming that a symbiotic relationship existed. There was no statutory or financial relationship with the state, and the government cannot be said to have exercised any control over or influence over the operation of the business of defendants.

As to the nexus approach we must inquire if the state could be deemed responsible for the specific conduct of which the plaintiff complains. It could hardly be said that such state responsibility exists in the defendants' act of disconnecting the cable system established by the plaintiff, or in the defendants' threatened enforcement of their rights through civil or criminal remedies. In Crozer Chester Medical Center v. May, 352 Pa.Super. 51, 506 A.2d 1377 (1986), involving free speech rights under Article 1, Section 7 of the Pennsylvania Constitution, the court held that there was no greater right afforded under the Pennsylvania Constitution than has been afforded free speech rights under the United States Constitution. In an effort to protect private property rights there were actual arrests, threats of trespass action, and the granting of a preliminary injunction by the court. It was held that under the circumstances this conduct neither created a symbiotic relationship nor established a nexus between defendants and the state government. The Supreme Court in Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982), a case in which plaintiffs sought to hold state officials liable for actions of private nursing homes, alluded to those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the state so as to make it "state action." In discussing the nexus approach the court held that "the purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the state is responsible for the specific conduct of which the plaintiff complains." Further, "... our precedents indicate that a state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state."

Plaintiff erroneously relies in part on Wilco v. Electronic Systems, Inc., 50 Bucks L.Rep. 243 (1987), a case in which a cable television company with an exclusive contract sought to enforce its agreement against another cable company which entered an apartment complex to service tenants. The Bucks County Court held that to enforce such an exclusive contract through the courts would be the execution of "state action" which would in turn violate the First Amendment of the United States Constitution. The court cited Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) as its authority. The latter overturned a state court's enforcement of an agreement or covenant in a deed which contained a racially restrictive covenant. Plaintiff would urge that the defendants' threatened court action is tantamount to the court action in Wilco. They also argue that the defendants' conduct is...