Centel Cable Television Co. of Florida v. Thos. J. White Development Corp.

Decision Date05 June 1990
Docket NumberNo. 89-5318,89-5318
Citation902 F.2d 905
PartiesCENTEL CABLE TELEVISION COMPANY OF FLORIDA, Plaintiff-Appellee, v. THOS. J. WHITE DEVELOPMENT CORPORATION, St. Lucie West Country Club Estates Associations, Inc., and St. Lucie West Utilities, Inc., Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

George P. Ord, David Baker, Michael Pucillo, Elizabeth Maass, Palm Beach, Fla., Wesley R. Harvin, Harvin & Geary, Stuart, Fla., for defendants-appellants.

Terry S. Bienstock, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON, Circuit Judge, HILL *, and HENLEY **, Senior Circuit Judges.

JOHNSON, Circuit Judge:

This case arises on appeal from the district court's order of February 28, 1989, granting the plaintiff, Centel Cable Television Company of Florida ("Centel"), a permanent injunction guaranteeing access to utility easements in St. Lucie West, a development in southern Florida.

I. FACTS
A. Background

St. Lucie West will be a mixed-use development covering 4,600 acres and capable of accommodating 18,000 residences. 1 In addition, the development will house two colleges, a New York Mets spring-training stadium complex, six public schools, hospital and medical facilities, a shopping mall, a hotel and convention center, and industrial and commercial sites. The defendant, Thos. J. White Development Corporation ("White"), is the project's developer. 2

Centel is a distributor of cable television services in Florida. Centel's national affiliate has between 200 and 300 cable television franchises and 580,000 subscribers. Centel holds a non-exclusive franchise to distribute cable television services in the City of Port St. Lucie, where St. Lucie West is located.

In December 1987, a White affiliate, St. Lucie West Cablevision, entered into a joint venture with MERC communications of Michigan. The joint venture, Lucie West Cablevision Company ("SLW Cablevision"), was to provide exclusive cablevision services to St. Lucie West. 3 SLW Cablevision obtained a non-exclusive franchise to service St. Lucie West from the City of Port St. Lucie on August 3, 1987.

White recorded the plat for St. Lucie West on January 20, 1988. The plat dedicated public utility easements to Florida Power and Light ("FP & L") and Southern Bell for the purposes of installing and maintaining their utilities. The plat also dedicated a "utility easement" to St. Lucie West Utilities, Inc. for the purpose of installing video communications. White's plat provided that all roads within St. Lucie West would be private rights-of-way and dedicated the easements to the defendant St. Lucie West Country Club Estates Association, Inc. White permitted FP & L and Southern Bell to use the private road system in St. Lucie West to gain access to their easements. FP & L and Southern Bell have begun installing their systems using St. Lucie West's roads.

In late July 1988, Centel began using the private roads within St. Lucie West in order to gain access to the dedicated utility easements and install a network of cable television lines. SLW Cablevision had not yet begun installing its cable television lines. On August 2, 1988, Centel attempted to install its cables by following the FP & L and Southern Bell easements. White threatened to impound Centel's truck and told Centel's crew to leave St. Lucie West, which White asserted was private property. 4

B. Proceedings in the District Court

On August 9, 1988, Centel filed the present action under the Cable Communications Policy Act of 1984, 47 U.S.C.A. Secs. 521-557 ("the Cable Act"), 5 under Fla.Stat.Ann. Sec. 177.091(29) ("the Plat Act"), and under Florida tort law. Centel asked for preliminary and permanent injunctions and damages. On September 12, 1988, the parties stipulated that neither would lay any cables, or activate, operate, or market their cable systems in St. Lucie West until the court ruled on Centel's motion for an injunction. The stipulation further provided that if Centel succeeded on the merits, both parties would construct their systems for thirty days and then both parties would be free to market their services in St. Lucie West.

In an order dated February 28, 1989, the district court found that White had denied Centel access to St. Lucie West in violation of the Cable Act and that Centel had a right of access under the Cable Act. The district court also held that the Plat Act granted cable companies a right of access to platted utility easements. The court found that by dedicating the roads in St. Lucie West to the St. Lucie West Association, Inc., White had formed a private agreement to restrict access to the public utility easements in St. Lucie West in violation of the Cable Act. The court therefore ordered White to allow Centel access to the public utility easements across the private roads in St. Lucie West. 6 The court rejected White's argument that the Cable Act was unconstitutional under the Takings Clause of the Fifth Amendment.

The district court concluded that Centel had succeeded on the merits of its claim, that Centel would suffer irreparable injury from not installing its cables while the development was under construction, and that granting Centel access to the easements was in the public interest. The court therefore granted Centel a permanent injunction, ordering White to allow Centel access to the easements, and use of roads in St. Lucie West.

In the present appeal, we consider whether the district court erred in holding that Centel has a right of access to the utility easements in St. Lucie West under the Cable Act and the Plat Act. We also consider whether the district court erred in holding that the Cable Act is constitutional under the Takings Clause. Finally, we consider whether the district court erred in granting Centel a permanent injunction.

II. STANDARD OF REVIEW

The district court's interpretation of a statute is subject to de novo review by this Court. Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1227 (11th Cir.1990). The district court's findings of fact are subject to "clearly erroneous" review in this Court. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

III. ANALYSIS
A. Right of Action Under the Cable Act

Section 621(a) of the Cable Act, 47 U.S.C.A. Sec. 541(a), provides as follows:

(1) A franchising authority 7 may award, in accordance with the provisions of this subchapter 1 or more franchises within its jurisdiction.

(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....

47 U.S.C.A. Sec. 541(a) (West Supp.1989). In Centel Cable Television Co. of Fla. v. Admiral's Cove Assoc., Inc., 835 F.2d 1359, 1364 (11th Cir.1988), this Court held that section 621(a) of the Cable Act provides cable companies such as Centel with an implied right of action against developers who block construction of cable systems through easements dedicated to compatible uses.

White urges this Court to overrule Admiral's Cove and rule that there is no implied right of action under the Cable Act. This Court is bound by the determinations of prior panels of the Eleventh Circuit until and unless modified by the en banc Court. United States v. Machado, 804 F.2d 1537, 1543 (11th Cir.1986). Accordingly, even if we disagreed with the holding in Admiral's Cove, we would still be compelled to rule that Centel has an implied right of action under the Cable Act.

White also argues that even if Centel has a right to construct a cable network through the utility easements in St. Lucie West, the district court erred in holding that Centel has a right to use St. Lucie West's private roads and cross White's private property to reach the easements. The district court held that White could not make private agreements with other utilities, or classify rights-of-way as private, in order to thwart the intent of the Cable Act that cable companies should have access to utility easements. Without the right of passage to and from the utility easements, the court reasoned, the holder of the easement cannot fully enjoy the easement. Such enjoyment, the court held, includes "the installation[,] construction, maintenance[,] and operation of the utility." The court, therefore, held that Centel had a right to use St. Lucie West's "private" roads.

In Admiral's Cove, this Court held that Congress intended to forbid any private agreements that would prevent a cable franchise from using dedicated utility easements. Admiral's Cove, 835 F.2d at 1362 (citing H.R.Rep. No. 934, 98th Cong., 2d Sess. 59, reprinted in 1984 U.S.Code Cong. & Admin.News 4655, 4696). 8 The Admiral's Cove Court also found that Congress intended to authorize the cable operator to "piggyback" on easements dedicated to electric, gas, or other utility transmission. Id. at 1362 n. 5 (citing H.R.Rep. No. 934 at 59, 1984 U.S.Code Cong. & Admin.News at 4696). In the present case, White's plat and White's agreements with FP & L and Southern Bell allowing those utilities to use the private roads in St. Lucie West were designed to control access to the dedicated utility easements. Accordingly, White's allowing FP & L and Southern Bell access to St. Lucie West's private roads while prohibiting Centel access to those roads is a private agreement in violation of the Cable Act. 9

B. Constitutionality of the Cable Act

White also argues that the Cable Act, as interpreted by the Admiral's Cove Court, violates the Takings Clause of the Fifth Amendment. White argues that under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), Congress's providing cable companies with a right of action to install cables in White's "private" easements is a per se violation of the Takings...

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