Connecticut Television, Inc. v. Public Utilities Commission

• Decision Date: 22 April 1970
• Docket Number: B-T
• Citation: 159 Conn. 317,269 A.2d 276
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT TELEVISION, INC. v. PUBLIC UTILITIES COMMISSION et al. OUTLET/COMPANY v. PUBLIC UTILITIES COMMISSION et al. DUCCI ELECTRIC COMPANY, Inc. v. PUBLIC UTILITIES COMMISSION et al.

Page 276

269 A.2d 276

159 Conn. 317

CONNECTICUT TELEVISION, INC. v. PUBLIC UTILITIES COMMISSION et al.

OUTLET/B-T COMPANY v. PUBLIC UTILITIES COMMISSION et al.

DUCCI ELECTRIC COMPANY, Inc. v. PUBLIC UTILITIES COMMISSION et al.

Supreme Court of Connecticut.

April 22, 1970.

W. Robert Hartigan, Hartford, for appellant (plaintiff) in the first case.

Bourke G. Spellacy, Hartford, with whom, on the brief, were Stuart N. Updike and Thomas W. DeMille, Hartford, for appellant (plaintiff) in the second case.

Marcia B. Smith, Torrington, with whom were Paul Smith, Torrington, and, on the brief, Alexander M. Hart, Torrington, for appellant (plaintiff) in the third case.

Joseph P. Cooney, Hartford, for appellee (defendant TelePrompTer Corp.) in all three cases.

John L. Collins, Hartford, for appellee (defendant Community Television Systems, Inc.) in all three cases.

Bruce C. Mayor, Hartford, with whom, on the brief, was Martin S. Michelson, Hartford, for appellee (defendant Laurel Cablevision, Inc.) in the third case.

Morgan K. McGuire, New London, for appellee (defendant Vision Cable Corp.) in the second case.

Hugh M. Joseloff, Hartford, for appellee (defendant Grossco C.A.T.V., Inc.) in the first and third cases.

Frank R. Odlum, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and John G. Hill, Jr., Asst. Atty. Gen., for appellee (named defendant) in all three cases.

Robert A. Beizer and Theodore A. Shmanda, Washington, D.C., amicus curiae.

Alfred F. Wechsler, Hartford, for appellee (defendant Laurel Cablevision, inc.) in the first and second cases.

James R. Healey, Waterbury, for appellee (defendant Waterbury Community Antenna, Inc.) in the first and third cases.

Before ALCORN, HOUSE, THIM, RYAN and SHAPIRO, ^* JJ.

ALCORN, Chief Justice.

The plaintiff in each of these cases has appealed from the judgment of the Superior Court, which dismissed an appeal taken to that court from a decision of the public utilities commission. Although based upon separate records, the cases have been briefed and argued together because of the similarity of issues.

In 1963 the General Assembly adopted Public Act No. 425, which became effective June 24, 1963, and is now chapter 289 (§§ 16-330 to 16-333) of the General Statutes (Rev. to 1966). The chapter requires the issuance of a certificate of public convenience and necessity by the public utilities commission, hereinafter called the commission, as a prerequisite to the construction or operation of a community antenna television system, commonly known as, and hereinafter called, CATV. Such a system is defined as 'any system operated in, under or over any street or highway for the purpose of providing antenna television service for hire.' General Statutes (Rev. to 1966) § 16-330. As a prerequisite to the issuance of a certificate by the commission, a public hearing is required, and, as a basis for the issuance of the certificate, hereinafter called a franchise, the commission is required to 'take into consideration the public need for the proposed service, the suitability of the applicant or, if the applicant is a corporation, of its management, the financial responsibility of the applicant and the ability of the applicant to perform efficiently the service for which authority is requested.' General Statutes (Rev. to 1966) § 16-331(b).

Following the passage of chapter 289, many applications for CATV franchises were filed with the commission in which the applicants sought to serve various towns or groups of towns. Three applications were withdrawn prior to hearing, and, following protracted hearings, the commission dismissed or denied others and granted franchises to seventeen applicants.

The plaintiff Connecticut Television, Inc., is a licensee of television station WHNB-TV Channel 30 in New Britain, and it filed two (CATV) applications in which it sought franchises to serve eighteen towns. Both of its applications were denied.

The plaintiff Ducci Electric Company, Inc., applied for a franchise to serve the towns of Thomaston, Torrington and Winsted, but the commission granted a franchise to Ducci for the towns of Barkhamsted, Goshen, Harwinton, New Hartford and Winchester and granted a franchise to another applicant for the towns of Torrington and Thomaston.

The plaintiff The Outlet/B-T Company is financially affiliated with television station WJAR-TV in Providence, Rhode Island, and it applied for a franchise to serve forty towns. The application was amended to seek a franchise for the towns of Groton, New London and Norwich. The commission granted a franchise for the towns of Groton, Stonington (except the Village of Pawcatuck), Ledyard and North Stonington and thereafter reopened the hearing and revoked the franchise.

The plaintiff Connecticut Television, Inc., hereinafter called Television, appealed from the decision of the commission to the Superior Court, claiming, essentially, that a franchise had been wrongly denied it solely because it was a CATV applicant financially affiliated with a television broadcasting station. The Superior Court dismissed the appeal. In its appeal from the judgment of the Superior Court, Television claims that the commission has failed to set forth basic facts to support its decision or to permit a review of its decision; that the commission acted illegally, arbitrarily and without statutory authority in refusing to grant a franchise on the ground of the common ownership of broadcasting and CATV facilities; that the commission lacked power to deal with an issue of common ownership because the federal communications commission has preempted the field; and that the commission failed to weigh the qualifications of the respective applicants pursuant to statutory standards.

In the appeal from the Superior Court judgment taken by Ducci Electric Company, Inc., hereinafter called Ducci, the claim is that the commission failed to set forth basic facts to support its decision or to permit a review thereof; that the commission acted unlawfully, arbitrarily, in abuse of its discretion and without support in the evidence by granting a franchise to that plaintiff in areas for which it did not apply and in denying a franchise in two of the towns for which it did apply; and that both the commission and the court denied that plaintiff due process of law.

The plaintiff The Outlet/B-T Company, hereinafter called Outlet, asserts in its appeal from the Superior Court judgment that the commission has failed to set forth basic facts to support its conclusion and to permit a review of it; that Outlet was denied due process of law by the commission's refusal to hear certain evidence and by its failure to disclose the common ownership standard which it applied in first granting and later revoking Outlet's franchise; that the commission illegally applied the common ownership of CATV and television broadcast facilities as a standard for the denial of a franchise, and that, in any event, it failed properly to apply such a standard; and that the commission illegally invaded a field preempted by the federal communications commission.

All interested parties have been free to participate in all cases from the outset. Following the passage of the 1963 statute, the commission was confronted with the many applicants for franchises to serve seventy of the 169 towns in the state. Many applicants sought franchises in the same towns, and the size and configuration of the areas applied for varied widely. The commission undertook to treat the problem thus presented as a unified whole. Consequently, a notice of hearing was issued under date of July 13, 1964, to all applicants as of that date, followed by a further notice dated September 28, 1964, which included four additional applicants, and assigning the various applications for hearing on specific dates. Procedural rules were established for the offer of evidence by all proponents and the right of cross-examination by all parties in interest. All applicants were required to make all exhibits available to all interested parties, the requirements of General Statutes (Rev. to 1966) § 16-331 were set forth, and applicants were warned of their burden to prove their ability to comply. Thereafter the hearing continued, during ninety-three sessions, for nearly three years until the commission issued the decision and order appealed from on March 21, 1967.

In the appeals taken to the Superior Court by Television, Ducci and Outlet, the members of the commission and all applicants to which franchises had been granted, as well as some others not necessary to mention, were made parties and were fully heard by the court on the record certified by the commission.

In the appeals to this court by Television, Ducci and Outlet, the commission and the applicants to which franchises were granted by the commission appear as defendants. The record certified by the commission to the Superior Court consists of 9481 pages of testimony, the orders of the commission previously described, and the exhibits submitted by all applicants.

From the record thus certified, the trial court, in substance, reached the following identical conclusions in the three cases now before us. The function of the court was to determine from the record before it, and without substituting its own discretion, whether the commission had acted illegally or in abuse of its powers. The facts found by the commission and its stated conclusions were sufficient to permit a review of its decision from the record. The commission's grant of a franchise among applicants, all of which it found to be equally qualified by management, financial and performance standards, was an administrative matter and not subject to review by the court. The commission followed the standards prescribed by General Statutes (Rev. to 1966) § 16-331 and, in determining the suitability of the applicant, considered biographical data and the question whether the...