Charter Tp. of Meridian v. Roberts, Docket No. 55351
| Decision Date | 06 April 1982 |
| Docket Number | Docket No. 55351 |
| Citation | 319 N.W.2d 678,114 Mich.App. 803 |
| Parties | CHARTER TOWNSHIP OF MERIDIAN, Plaintiff-Appellant, v. David M. ROBERTS, d/b/a Custom Cablevision and Nemoke Cablevision, Louis J. Eyde, d/b/a East Lansing Management Company, and George F. Eyde, and Louis J. Eyde d/b/a Eyde Construction Company, a Michigan co-partnership, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Foster, Swift, Collins & Coey, P. C. by William K. Fahey, Lansing, for plaintiff-appellant.
Kim Thomas Capello, East Lansing, for defendants-appellees.
Before BRONSON, P. J., and BURNS and CORDEN, * JJ.
Plaintiff appeals as of right a lower court order granting summary judgment in favor of defendants. The basis of the trial judge's ruling, as evidenced by his comments from the bench at a December 3, 1980, proceeding, appears to be a finding by the judge that the plaintiff township was without authority to require a cable television service operating exclusively within the bounds of a private apartment complex to be franchised under its cable communications ordinance. At an October 29, 1980, proceeding, the trial judge held that the circuit court was without power to grant equitable relief to correct the violation of an ordinance that is punishable by a fine or other criminal penalty. It is not clear from the record of this later proceeding whether the trial judge abandoned his earlier rationale for granting defendants' motion.
In April, 1977, plaintiff adopted the Meridian Township cable communication ordinance. Soon afterward, the National Cable Corporation began providing persons in the township cable television service pursuant to a franchise agreement that it had executed with the plaintiff township board in compliance with the cable communication ordinance.
In 1980, the defendants commenced the operation of a cable television service in a 400-unit apartment complex that they had built and managed. The service consists of an antenna, a system of conducting cables, amplifiers, converters and other equipment that defendants used to amplify and modify television broadcast signals for redistribution in the apartment complex. Residents of the apartment complex pay an installation charge as well as monthly subscription fees to defendants.
On May 27, 1980, plaintiff commenced suit in the circuit court seeking an injunction prohibiting defendants from offering cable television service without a franchise, enjoining defendants from maintaining a cable wire across a public right-of-way without a franchise, and ordering defendants to refund all money they had collected from residents in the township in connection with their operation of a cable television service without a franchise.
Defendants moved for accelerated judgment claiming that a court of equity was without power to restrain the violation of a municipal ordinance that provided for only criminal penalties. The trial judge agreed and granted defendants' motion, stating his reasons for doing so on the record at an October 29, 1980, proceeding. On December 2, 1980, the trial judge heard argument on defendants' motion for summary judgment. Following that hearing, the trial judge found that the plaintiff township was without authority to require defendants to obtain a franchise in accordance with its cable communications ordinance. Plaintiff now appeals.
Pursuant to section 115-3(b) of plaintiff Meridian Township's code of ordinances, "cable communications service" is defined as:
"[T]he business, at whole or in part, of receiving directly or indirectly over the air, and amplifying or otherwise modifying signals transmitting programs broadcast by one (1) or more signals, sound signals, pictures, visual images, digital signals, telemetry, or any other type of closed circuit transmission by means of electrical or light impulses, whether or not directed to originating signals or receiving signals off the air, and redistributing such signals by wire, cable or other means to members for the public located in the Charter Township of Meridian who pay for such service."
Section 115-4(a) of the code of ordinances provides that:
"No person shall construct, install, maintain or operate a cable communications system in the Charter Township of Meridian nor shall any person provide a cable communications service or acquire ownership or control of a cable communications company in the Charter Township of Meridian without such person having first obtained a franchise therefor from the Charter Township of Meridian in the form of a franchise agreement between the Charter Township of Meridian and the franchisee, which franchise agreement shall include, at the minimum compliance with the specifications of this Chapter."
Plaintiff first argues that the trial judge erred in holding that it does not have the authority to regulate a cable television system that offers service only to the residents of a private apartment complex. We agree.
Defendants concede that the operation of their television system falls within the scope of the language used in plaintiff's cable communications ordinance. Defendants' system is not a mere device for the enhancing of the effectiveness of television antennas. Rather, it is a true cable television service that offers its subscribers signals that are not available to persons without facilities to decode them. Indeed, defendants state in their brief on appeal that the cable service it provides is comparable to the service offered by National Cable Company, a company that holds a franchise to operate within the plaintiff township.
Under the authority granted it in Const.1963, art. 7, § 29, a township may prohibit any person who operates a public utility from transacting any business within the township without first obtaining a franchise. It appears then that if a cable television system of the type operated by defendants is a "public utility" within the meaning of this constitutional provision that plaintiff's cable communications ordinance is valid and defendants may be prohibited from operating their system without a franchise.
In a perceptive opinion issued in 1974, the State Attorney General found that local governmental units did have authority to grant cable television franchises despite the absence of specific legislation on the subject. OAG 1973-1974 No. 4808, p. 130 (April 25, 1974). The attorney general opined that cable television systems were public utilities within the meaning of the Michigan Constitution. Specifically, he relied on art. 7, § 29 and interpreted the term "public utility" to include cable communication systems in light of Const.1963, art. 7, § 34, which provides that sections of the 1963 constitution as well as state statutes that set forth the powers and limitations of counties, townships, cities, and villages .
In White v. City of Ann Arbor, 406 Mich. 554, 281 N.W.2d 283 (1979), the Michigan Supreme Court held that a cable television system was not a public utility within the meaning of that term as used in Const.1963, art. 7, § 25 which provides:
In reaching this conclusion, the Supreme Court found to be especially persuasive the treatment given § 25 by the drafters of the constitution with regard to the Court's 1941 interpretation of Const.1908, art. 8, § 25, the predecessor version of art. 7, § 25. In that 1941 opinion, Holland v. Clerk of Garden City, 299 Mich. 465, 300 N.W. 777 (1941), the Court held that a sewage treatment system was not a public utility within the meaning of the provisions of Const.1908, art. 8, § 25. The White Court found nothing to indicate that the drafters of the 1963 Constitution did not intend to incorporate a Holland -type definition of public utilities into art. 7, § 25:
406 Mich. 554, 567, 281 N.W.2d 283.
The principal distinguishing factor between art. 7, § 25, considered by the Supreme Court in White, and art. 7, § 29 before us...
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