Comcast Sch Holdings v. Villages of Lake-Sumter
| Decision Date | 17 August 2001 |
| Docket Number | No. 5:01-Cv-147-Oc-10GRJ.,5:01-Cv-147-Oc-10GRJ. |
| Citation | 168 F.Supp.2d 1338 |
| Parties | COMCAST SCH HOLDINGS, INC., Plaintiff, v. The VILLAGES OF LAKE-SUMTER, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Terry S. Bienstock, Jeffrey A. Jacobs, Philip Jay Kantor, Bienstock & Clark, Miami, FL, for plaintiff.
Stephen Warfield Johnson, McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A., Leesburg, FL, for defendant.
PRELIMINARY INJUNCTION
The Court, having considered Plaintiff's Motion For Preliminary Injunction, and this Court being fully advised in the premises and for the reasons set forth in the Court's Report And Recommendation, finds that Plaintiff has demonstrated the necessary prerequisites for preliminary injunctive relief. Accordingly, it is ordered that:
1. During the pendency of this action The Villages Of Lake-Sumter, Inc. ("The Villages") is enjoined from:
(A) Denying Comcast Sch Holdings, Inc. ("Comcast") access to The Villages PUD in Marion County for the purpose of constructing a cable system utilizing public rights-of-way and easements dedicated for compatible uses, including the joint trench as it is opened for any other utilities, and areas where the joint trench has already been closed;
(B) Interfering with Comcast's construction of a cable television system in The Villages PUD utilizing the public rights-of-way and easements dedicated for compatible uses, including all utility easements;
2. This Order is binding upon The Villages, its officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation with The Villages who receive actual notice of this Order by personal service or otherwise.
3. This Order will become effective by the posting of a bond by Comcast in the form approved by the Clerk of the Court in the amount of $25,000.
IT IS SO ORDERED.
This is an action for declaratory and injunctive relief brought by the Plaintiff, Comcast, a cable television company, against the Defendant, Villages, a real estate development company, under the Cable Communications Policy Act of 1984, 47 USC § 521 et seq. The complaint (Doc. 1) also asserts a pendent claim for specific performance of a contract based on state law. The Court has federal question jurisdiction of the action pursuant to 28 USC § 1331.
Shortly after the filing of the complaint, Comcast filed a separate motion for a preliminary injunction (Doc. 5). I referred the motion to the United States Magistrate Judge (Doc. 7) to conduct such proceedings as he deemed necessary to the making of a report and recommendation concerning the grant or denial of preliminary injunctive relief. The United States Magistrate Judge, with his customary promptness and thoroughness, then conducted an early hearing (Doc. 23) after compiling a complete record for purposes of the motion under M.D.Fla.Rules 4.05 and 4.06. The resulting Report and Recommendation of the United States Magistrate Judge (Doc. 29) recommends that the Plaintiffs motion should be granted and that a preliminary injunction should be issued.
After careful consideration, however, I have determined that the motion should be denied and that a preliminary injunction should not be issued.1
Comcast is a cable television company providing cable service to residents of Marion, Lake and Sumter Counties. It has franchises issued to it by Lake and Sumter Counties, but operates without a franchise in Marion County because Marion does not presently have an ordinance requiring one.2
Villages is the developer of a large residential housing property located in the intersecting corners of Marion, Lake and Sumter Counties. It is presently expanding the project into Marion County where it is planning to build approximately 5,000 new homes. Villages has submitted to the appropriate authorities in Marion County various preliminary plats and engineering plans depicting, among other things, the location of utility easements. Marion County has approved those plats and plans; however, Villages has not yet "dedicated" the plats by recording them in the manner prescribed by Florida Statute 177.081(2) and (3) (2000):
177.081 Dedication and approval. —
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(2) Every plat of a subdivision filed for record must contain a dedication by the owner or owners of record. The dedication must be executed by all persons, corporations, or entities whose signature would be required to convey record fee simple title to the lands being dedicated in the same manner in which deeds are required to be executed. All mortgagees having a record interest in the lands subdivided shall execute, in the same manner in which deeds are required to be executed, either the dedication contained on the plat or a separate instrument joining in and ratifying the plat and all dedications and reservations thereon.
(3) When a tract or parcel of land has been subdivided and a plat thereof bearing the dedication executed by the owners of record and mortgagees having a record interest in the lands subdivided, and when the approval of the governing body has been secured and recorded in compliance with this part, all streets, alleys, easements, rights-of-way, and public areas shown on such plat, unless otherwise stated, shall be deemed to have been dedicated to the public for the uses and purposes thereon stated.
Even though the "dedication" of the pertinent plats has not been formalized under the statute, Villages is nonetheless permitting telephone and electric utility companies, and one cable television competitor of Comcast, to dig trenches and lay cable in the development project in the areas depicted as easements on the preliminary plats. Comcast, however, has been denied the same opportunity, and it seeks injunctive relief to prohibit this exclusion by Villages.3 Its claim to such relief is based upon a provision of the Cable Act, 47 USC § 541(a)(1) and (2):
§ 541. General franchise requirements
(a) Authority to award franchises; public rights-of-way and easements; equal access to service; time for provision of service; assurances
(1) A franchising authority may award, in accordance with the provisions of this subchapter, 1 or more franchises within its jurisdiction; except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise.
* * * * * *
(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 serviced by the cable system and which have been dedicated for compatible uses, ... (Emphasis supplied)
The crux of the present dispute centers on the word "dedicated" as used in the Cable Act; and, more particularly, whether a property owner's grant of private easements not yet formally dedicated to the public under governing state law may nevertheless be viewed as dedicated in fact sufficient to trigger application of § 541(a)(2).
That question appears to have been negatively answered in this Circuit by Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600 (11th Cir.1992), cert. denied, 506 U.S. 862, 113 S.Ct. 182, 121 L.Ed.2d 127 (1992), rehr'g. en banc denied, 988 F.2d 1071 (1993), Chief Judge Tjoflat and Judges Hatchett, Anderson and Kravitch dissenting.
Today we have endeavored to clarify both Section 621(a)(2) of the Cable Act [47 USC § 541(a)(2)] and our prior decisions defining the right of access granted by this provision. In order to avoid substantial constitutional problems and in order to be consistent with our prior decisions in this area of the law, we have concluded that Section 621(a)(2) [47 USC § 541(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 recordation 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.
In two earlier decisions of the court under the Cable Act, Centel Cable Television Company of Florida v. Admiral's Cove Associates, Ltd., 835 F.2d 1359 (11th Cir.1988), and Centel Cable Television Company of Florida v. Thos. J. White Development Corporation, 902 F.2d 905 (11th Cir.1990), the court had first decided (in Admiral's Cove) that the Cable Act inferred and created a private right of action in cable franchisees to enforce their rights under the Act, and had then decided (in Thos. J. White Development Corporation) that a developer could not exclude a cable company from using private roads to gain access to dedicated utility easements because, under Florida law, such right of access was implied from the dedicated easement itself. Id., 902 F.2d at 909, note 9.
There is room for reasonable disagreement as to whether the result reached in Cable Holdings of Georgia, Inc., is fully harmonious with the two earlier decisions of the circuit as amply demonstrated by then Chief Judge Tjoflat's dissent from the court's denial of rehearing en banc. See Cable Holdings of Georgia, Inc., 988 F.2d 1071 (11th Cir.1993) (Tjoflat, Chief Judge, dissenting.) And, in his Report and Recommendation, the United States Magistrate Judge declined to follow Cable Holdings of Georgia because that decision "would appear to be directly at odds with the holdings in Admiral's Cove and Thos. J. White." (Doc. 29, Report and Recommendation, at 11).
In making that decision the Magistrate Judge purported to follow and apply the circuit's prior precedent rule — that in the event of conflicting...
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...with the legislative purpose of COBRA, and thus serves the public interest. See, e.g., Comcast SCH Holdings, Inc. v. Villages of Lake-Sumter, Inc., 168 F.Supp.2d 1338, 1351 (M.D.Fla. 2001) (injunction consistent with purpose of statute is in the public Accordingly, for these reasons, the Co......