Greater Worcester Cablevision v. CARABETTA ENT.

• Decision Date: 20 November 1985
• Docket Number: Civ. A. No. 85-2022-MA.
• Citation: 682 F. Supp. 1244
• Parties: GREATER WORCESTER CABLEVISION, INC., Plaintiff, v. CARABETTA ENTERPRISES, INC., Joseph F. Carabetta, and Lincoln Street Realty Company, Defendants.
• Court: U.S. District Court — District of Massachusetts

682 F. Supp. 1244

GREATER WORCESTER CABLEVISION, INC., Plaintiff, v. CARABETTA ENTERPRISES, INC., Joseph F. Carabetta, and Lincoln Street Realty Company, Defendants.

Civ. A. No. 85-2022-MA.

United States District Court, D. Massachusetts.

November 20, 1985.

Michael P. Angelini, Barry A. Bachrach, Bowditch & Dewey, Worcester, Mass., for plaintiff.

Joanne E. Romanow, Schlesinger and Buchbinder, Newton, Mass., Christine S. Vertefeuille, Andrew R. Lubin, Susman & Duffy, P.C., New Haven, Conn., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This is an action for an injunction enforcing rights under Massachusetts' community antenna television system statute, Mass. Gen.Laws Ann. ch. 166A, § 22 (West 1976 & Supp.1985), and under section 621(a)(2) of the Federal Cable Communications Policy Act of 1984, 47 U.S.C.A. § 541(a)(2) (West Supp.1985). Plaintiff Greater Worcester Cablevision, Inc. (Cablevision) holds a non-exclusive license from the City of Worcester to provide cable television service to Worcester residents.¹ Defendant Lincoln Street Realty Company (Lincoln), is a limited partnership which owns Lincoln Village Apartments, a 1200-unit apartment complex in Worcester. Defendants Carabetta Enterprises, Inc. and Joseph F. Carabetta are Lincoln's general partners.

I.

In March 1985, Cablevision sought access to Lincoln's property in order to install cable television, at the request of several Lincoln tenants.² Lincoln refused access. Lincoln has recently permitted American Satellite Cable Corporation, a Cablevision competitor, to install a satellite master antenna television system which will offer the same television services to Lincoln tenants as Cablevision seeks to provide. Affidavit of Salvatore Carabetta; Affidavit of Carole T. Kissel.

Cablevision originally sought a preliminary injunction, as well as a permanent injunction, ordering Lincoln to permit Cablevision access to install its cable equipment. Cablevision contends that under the terms of its license, it is duty bound to provide cable television service to every Worcester resident who requests such service. Further, Cablevision argues that section 22 obliges owners of multi-dwelling property such as Lincoln to afford it access so that it can do so. Under the Massachusetts statute, a property owner is deemed to have consented to access once the cable operator furnishes him with a copy of the statute and a statement agreeing to be bound by its terms; Cablevision did so. Cablevision also contends that the newlyenacted federal Cable Communications Policy Act of 1984 creates a similar right of access for licensed cable operators by its provision that cable operators can use easements a property owner has already granted to public utilities.

Cablevision filed its complaint in state court in April, 1985. Lincoln removed the case to this Court in May, 1985. This Court's subject matter jurisdiction is based on diversity of citizenship. Cablevision is a Massachusetts corporation with its principal place of business in Worcester. Carabetta Enterprises, Inc. is a Connecticut corporation with its principal place of business in Meriden, Connecticut. Joseph Carabetta is a Connecticut citizen. Lincoln, the limited partnership, has 119 limited partners, none of whom are Massachusetts citizens.

After a hearing in Worcester on August 20, 1985, this Court denied Cablevision's preliminary injunction motion, concluding in part that damages were calculable and available. This matter is now before the Court on Lincoln's motion to dismiss for failure to state a claim on which relief can be granted.

II.

Lincoln does not dispute that the Massachusetts statute, Mass.Gen.Laws Ann. ch. 166A, § 22 (West 1976 & Supp.1985), gives Cablevision an enforceable right of access to Lincoln's apartment complex.³ Lincoln also concedes that Cablevision has followed the statutory procedure which required Cablevision to deliver to Lincoln a copy of the statute and a signed statement agreeing to be bound by its terms.⁴ Lincoln, however, attacks the statute's constitutionality.

Lincoln alleges three constitutional defects: (1) the statute authorizes a taking of private property without just compensation, in violation of the Fifth and Fourteenth Amendments; (2) the statute violates Lincoln's First Amendment free speech rights by requiring Lincoln to permit Cablevision, a state-licensed speaker, to use its property as a platform; and (3) the statute gives mandatory access only to licensed community antenna television (CATV) operators, discriminating against competing television providers in violation of the Equal Protection Clause of the Fourteenth Amendment.

Lincoln also contends that section 621(a)(2) of the newly-enacted Cable Communications Policy Act, on which Cablevision relies in seeking an order permitting it to use utility easements and public rights-of-way at Lincoln Village, is unconstitutional and, in any event, will not have the broad practical effect that Cablevision claims. These contentions are addressed seriatim.

A. THE MASSACHUSETTS CATV STATUTE

1. UNCOMPENSATED TAKING

Section 22 of the Massachusetts CATV statute, Mass.Gen.Laws Ann. ch. 166A, § 22 (West 1976 & Supp.1985), provides that a landlord must permit a cable operator to install its cable television equipment on his property if a tenant has asked for cable service. Installation of Cablevision's facilities will require physical attachment of conduit or wire molding to the buildings and the installation of some 25,000 feet of cable wire. Affidavit of Salvatore Carabetta. This, Lincoln asserts, will be a permanent physical occupation of its property, and thus a taking for which compensation is due under the Fifth and Fourteenth Amendments. Lincoln contends that section 22 must be struck down because it nowhere provides for such compensation. Moreover, the statute explicitly prohibits a property owner from "demanding or accepting payment, in any form, for the affixing of CATV system equipment...." Lincoln also argues that section 22 does not provide any mechanism by which it can seek just compensation. When the Massachusetts Legislature has intended to compensate property owners for takings, it has fashioned elaborate procedures. Its failure to do so when it enacted section 22, Lincoln asserts, means the Legislature did not intend for landlords to receive compensation for the installation of cable on their property.

Cablevision agrees that installation of its cable facilities will work a taking of Lincoln's property. But it insists that section 22 obliges cable operators to compensate property owners for any taking that results. Cablevision urges a broad reading of its duty under section 22 to indemnify Lincoln for "any damage" caused when it affixes its cable equipment. "Any damage," Cablevision contends, should be construed as damage caused by the permanent physical occupation of Lincoln's real property, as well as actual physical damage to Lincoln's buildings, fixtures or land. Section 22 does not prohibit such payments Cablevision argues; only payments in excess of payments for damage caused by installation of cable facilities are prohibited. Finally, Cablevision contends that section 22 does provide a mechanism by which Lincoln can obtain compensation. Cablevision must agree to be contractually bound by its obligations under section 22. Lincoln's remedy for just compensation is a contract action that will determine how much Cablevision must pay for any actual damage it causes, as well as for the property it takes.

Unquestionably, section 22 authorizes a taking of property compensable under the Fifth and Fourteenth Amendments by obliging landlords to permit cable operators to install cable equipment on their property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). The Supreme Court in Loretto defined a taking as any "permanent physical occupation" of property by a third party. Id. at 426, 102 S.Ct. at 3171. Loretto involved a New York statute providing that a landlord must permit a cable operator to install cable facilities on the landlord's property and may not demand payment from the operator in excess of the amount determined by a state commission to be reasonable. The Court ruled that installation—the "direct physical attachment of plates, boxes, wires, bolts and screws to the building," id. at 438, 102 S.Ct. at 3177—was a permanent physical occupation of the building that destroyed the building owner's rights to possess, use and dispose of her property. Id. at 435-37, 102 S.Ct. at 3175-77.

The Loretto court did not strike down the New York statute, but remanded to the state courts to determine the amount of compensation due. Cable operators, under the New York statute, cannot be forced to pay a landlord "in excess of any amount which the State Commission on Cable Television shall, by regulation, determine reasonable." Id. at 423 n. 3, 102 S.Ct. at 3169 n. 3. The state commission has ruled that a one-time $1 payment is the normal fee to which a landlord is entitled for the installation of cable equipment, though the commission's regulations permit higher than nominal awards if a landlord makes a special showing of greater damages. Id. at 424-25, 456 n. 12, 102 S.Ct. at 3169-70, 3176 n. 12.

Lincoln contends that the absence of language like that of the New York statute, providing for nominal compensation determined by a state agency with the possibility for higher awards, renders the Massachusetts statute constitutionally invalid. Lincoln relies on two Florida cases striking down a statute which required that landlords allow franchised cable operators access to apartment buildings but held the cable operator "responsible for paying to the landlord any costs, expenses or property damage that are incurred by the landlord during installation, repair, or removal of the cable," holding that this amounted to a taking that did not...