Marco Island Cable v. Comcast Cablevision

• Decision Date: 08 March 2007
• Docket Number: No. 2:04-cv-26-FtM-29DNF.,2:04-cv-26-FtM-29DNF.
• Parties: MARCO ISLAND CABLE, INC., a Florida corporation, Plaintiff, v. COMCAST CABLEVISION OF THE SOUTH, INC., a Colorado corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

509 F.Supp.2d 1158

MARCO ISLAND CABLE, INC., a Florida corporation, Plaintiff, v. COMCAST CABLEVISION OF THE SOUTH, INC., a Colorado corporation, Defendant.

No. 2:04-cv-26-FtM-29DNF.

United States District Court, M.D. Florida, Fort Myers Division.

March 8, 2007.

James Bailer, Sean A. Stokes, The Bailer Herbst Law Group, PC, Washington, DC, Karen A. Larson, Law Office of Karen A. Larson, P.A., Marco. Island, FL, for Plaintiff.

Jaime A. Bianchi, White & Case, LLP, Miami, FL, Noah A. Brumfield, White & Case LLP, Washington, DC, William D. Keith, Cardillo, Keith & Bonaquist, P.A., Naples, FL, for Defendant.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter came before the Court for a bench trial as to the declaratory judgment claim in Count II of plaintiff's Complaint, tried simultaneously with a jury trial as to a portion of Count I.¹ As to the remaining portion of Count I, the jury found Comcast had violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and awarded $3,267,392 in damages. At the conclusion of the evidence, the parties requested to submit closing arguments in writing, which the Court allowed. (Doc. # 430, pp. 2094-95.) Each side has submitted written arguments in support of their positions (Does. # 425, 426). The Court makes the findings of fact and conclusions of law set forth below.

I.

In Count II of the Complaint (Doc. # 2), Marco Island Cable, Inc. (MIC or plaintiff) sues Comcast Cablevision of the South, Inc. and Comcast Corporation (collectively Comcast or defendant) for a declaratory judgment under the Florida Declaratory Judgment Act, Fla. Stat. §§ 86.011 — 86.15. MIC asks the Court to "declare that all exclusive contracts for providing cable [television] services to residents of Collier County, entered into by Comcast or its predecessors are null and void." (Doc. # 2, ¶ 32.) Based on the Court's prior rulings, trial was confined to Multiple Dwelling Units (MDUs) on Marco Island, Florida.

MIC asserts that contracts entered between Comcast or its predecessors and the residents, condominium associations or developers which preclude condominium communities from utilizing the cable services of any provider other than Comcast are unenforceable as violations of Florida Statutes § 718.1232². Plaintiff asserts that five kinds of exclusive arrangements utilized by Comcast violate § 718.1232:(1) provisions that expressly give Comcast the exclusive right to provide cable services at a condominium; (2) provisions that require all residents to pay Comcast for basic cable service, whether or not they want service from Comcast; (3) provisions that give Comcast exclusive use of, or access to, the inside wiring necessary to provide cable service; (4) provisions that give Comcast the right to leave its facilities on the premises for up to six months after its right to provide cable service has ended; and (5) provisions that give Comcast an exclusive right of entry extending beyond the termination' of Comcast's right to provide service. Plaintiff asks the Court to permanently enjoin Comcast from entering into or enforcing the offending provisions of the contracts; to order that Comcast provide prompt written notice to all developers, associations, and residents who may be affected by such provisions; and to file a report documenting Comcast's compliance with this notice requirement. (Doc. # 425, p. 1.)

II.

Count II is brought pursuant to the Florida Declaratory Judgment Act. The Florida Declaratory Judgment Act is substantive law intended to be remedial in nature, and is to be liberally administered and construed. Fla. Stat. § 86.101; Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 10-12 (Fla.2004). Courts are authorized "to declare rights, status and other equitable or legal relations, whether or not further relief is or could be claimed," and "its declaration may be either affirmative or negative in form and effect ..." Fla. Stat. § 86.011. Courts "may render declaratory judgments on the existence or nonexistence: (1) Of any immunity, power, privilege, or right; or (2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future." Fla. Stat. § 86.011.

A declaratory judgment action may be brought by "[a]ny person claiming to be interested or who may be in doubt about his or her rights under a ... contract ... or whose rights, status, or other equitable or legal relations are affected by a ... contract ..." in order to determine "any question of construction or validity arising under such ... contract...." Fla. Stat. § 86.021. This "does not limit or restrict the exercise of the general powers conferred in s. 86.011 in any action where declaratory relief is sought." Fla. Stat. § 86.051. "Any declaratory judgment rendered pursuant to this chapter may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened, and in such case, the judgment shall have the same binding effect with respect to that future act or event, and the rights or liability to arise therefrom, as if that act or event had already been done or had already happened before the judgment was rendered." Fla. Stat. § 86.051.

Two statutes from the Florida Condominium Act, Fla. Stat. §§ 718.101 — 718.622 are also relevant. The statute which plaintiff claims is being violated by Comcast is Florida Statute § 718.1232, which states:

No resident of any condominium dwelling unit, whether tenant or owner, shall be denied access to any available franchised or licensed cable television service, nor shall such resident or cable television service be required to pay anything of value in order to obtain or provide such service except those charges normally paid for like services by residents of, or providers of such services to, single-family homes within the same franchised or licensed area and except for installation charges as such charges may be agreed to between such resident and the provider of such services.

The only Florida appellate case addressing this statute is Dynamic Cablevision of Fla., Inc. v. Biltmore II. Condo. Assoc., Inc., 498 So.2d 632 (Fla. 3d DCA 1986). Dynamic Cablevision rejected the cable provider's claim that the statute was violated when the condominium association refused to allow exterior wiring by a new cable provider and refused to pay the higher costs associated with the interior installation of the wiring. Additionally, Fla. Stat. § 718.115(1)(d) provides:

If so provided in the declaration, the cost of a master antenna television system or duly franchised cable television service obtained pursuant to a bulk contract shall be deemed a common expense. If the declaration does not provide for the cost of a master antenna television system or duly franchised cable television service obtained under a bulk contract as a common expense, the board may enter into such a contract, and the cost of the service will be a common expense but allocated on a per-unit basis rather than a percentage basis if the declaration provides for other than an equal sharing of common expenses, and any contract entered into before July 1, 1998, in which the cost of the service is not equally divided among all unit owners, may be changed by vote of a majority of the voting interests present at a regular or special meeting of the association, to allocate the cost equally among all units. The contract shall be for a term of not less than 2 years.

1. Any contract made by the board after the effective date hereof for a community antenna system or duly franchised cable television service may be canceled by a majority of the voting interests present at the next regular or special meeting of the association. Any member may make a motion to cancel said contract, but if no motion is made or if such motion fails to obtain the required majority at the next regular or special meeting, whichever is sooner, following the making of the contract, then such contract shall be deemed ratified for the term therein expressed.

2. Any such contract shall provide, and shall be deemed to provide if not expressly set forth, that any hearing-impaired or legally blind unit owner who does not occupy the unit with a non-hearing-impaired or sighted person, or any unit owner receiving supplemental security income under Title XVI of the Social Security Act or food stamps as administered by the Department of Children and Family Services pursuant to s. 414.31, may discontinue the service without incurring disconnect fees, penalties, or subsequent service charges, and, as to such units, the owners shall not be required to pay any common expenses charge related to such service. If less than all members of an association share the expenses of cable television, the expense shall be shared equally by all participating unit owners. The association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners receiving cable television.

III.

Plaintiff argues that Fla. Stat. § 718.1232 gives residents of condominiums a statutory right to choose among available franchised or licensed cable service providers, and gives franchised or licensed cable service providers an enforceable right to serve any resident who wants its service. The statute, plaintiff argues, "broadly covers arrangements that have the practical effect of preventing residents and qualified cable service providers from doing business with each other." (Doc. # 425, p. 3.) Before addressing these contentions, some preliminary matters must be addressed.

A. Contracts at Issue:

In its post-trial written closing argument, plaintiff identifies contracts for condominiums located at Vintage Bay (Plaintiff's Exh. 122); Stevens Landing (Plaintiff's Exh. 143); Vantage Point (Defendant's Exh. 202); Crescent Beach (Plaintiff's Exh. 73); Monterrey (Defendant's ...