Media General Cable of Fairfax, Inc. v. Sequoyah Condominium Council of Co-Owners

• Decision Date: 29 March 1993
• Docket Number: No. 90-2399,CO-OWNERS,90-2399
• Citation: 991 F.2d 1169
• Parties: MEDIA GENERAL CABLE OF FAIRFAX, INC., Plaintiff-Appellant, v. SEQUOYAH CONDOMINIUM COUNCIL OF; AMSAT Communication, Incorporated, Defendants-Appellees. Comcast Cable Communications; Adelphia Communications; Tele-Communications, Incorporated; Storer Cable Communications, Incorporated, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1169

991 F.2d 1169

61 USLW 2622

MEDIA GENERAL CABLE OF FAIRFAX, INC., Plaintiff-Appellant, v. SEQUOYAH CONDOMINIUM COUNCIL OF CO-OWNERS; AMSAT Communication, Incorporated, Defendants-Appellees Comcast Cable Communications; Adelphia Communications Tele-Communications, Incorporated; Storer Cable Communications, Incorporated, Amici Curiae.

No. 90-2399.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1991.

Decided March 29, 1993.

Robert Harvey Chappell, Jr., Christian, Barton, Epps, Brent & Chappell, Richmond, VA, argued (David C. Kohler, E. Ford Stephens, on brief), for plaintiff-appellant.

W. James MacNaughton, Short Hills, NJ, argued (Robert Rowan, Nixon & Vanderhye, Frank W. Dunham, Jr., Cohen, Gettings, Alper & Dunham, Arlington, VA, William H. Hefty, Richmond, VA, on brief), for defendants-appellees.

Terry S. Bienstock, Frates, Bienstock & Sheehe, Miami, FL, for amici curiae.

Before ERVIN, Chief Judge, STAKER, United States District Judge for the Southern District of West Virginia, sitting by designation, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

ERVIN, Chief Judge:

Media General Cable of Fairfax, Inc. (Media) a cable television franchisee, brought this declaratory action under § 621(a)(2) of the Cable Communications Policy Act of 1984 ("the Cable Act") ¹ seeking a declaration that it was entitled to install its cable wires in compatible easements on the Sequoyah Condominium's (Sequoyah) commons area. The district court held that the Act did not (1) permit Media to compel access to private utility easements in order to reach individual unit owners at Sequoyah and (2) authorize a taking of this private property, nor provide just compensation for such a taking. ² Media appeals and we affirm.

I.

In September 1982 Media was granted a nonexclusive franchise by Fairfax County, Virginia to operate a cable television system. In November 1988, Media allegedly was asked by certain residents of Sequoyah Condominium to provide cable service within the condominium complex, located in Fairfax County and comprising more than 1000 individual townhouse and other residential units. Sequoyah's Council of Co-Owners, (Sequoyah), is an unincorporated association to which all of its residential owners belong and is responsible for the governance and management of the complex.

AMSAT Communication, Incorporated, (AMSAT) by way of permissive intervention ³, operates a satellite master antenna television system. AMSAT does not hold any local franchise of the type held by Media, but rather operates through the use of satellite and master antenna facilities located on private property within a residential complex, by agreement with such complex, and distributes the signals so received to residents through wires located within the complex. In 1982, a predecessor of AMSAT entered into an exclusive agreement with Sequoyah to provide cable television service.

The Master Deed of the Sequoyah complex dated September 14, 1972 provides for--

a blanket easement upon, across, over and under all of the property for ingress, egress, installation, replacing, repairing, and maintaining a master television antenna system and all utilities including, but not limited to, water, sewers, telephones and electricity. By virtue of this easement, it shall be expressly permissible for the providing utility company to erect and maintain the necessary poles and other necessary equipment on said property and to affix and maintain utility wires, circuits and conduits on, above, across and under the roofs and exterior walls of the residents [.] [sic] [N]otwithstanding anything to the contrary contained in this paragraph, no sewers, electrical lines, water lines, or other utilities may be installed or relocated on said property except as initially programmed and approved by the Declarant, or thereafter approved by the Declarant, or thereafter approved by the Council. Should any utility furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, the Declarant or Council shall have the right to grant such easement on said property without conflicting with the terms hereof.

In accordance with the last sentence of that blanket easement, Sequoyah granted specific utility easements in favor of Virginia Power and Electric Company (Virginia Power), Chesapeake and Potomac Telephone Company (C & P), and AMSAT. All of those grants antedate the Act. The Master Deed grant is seemingly in perpetuity, as are, for practical purposes, the grants in favor of Virginia Power and C & P. On the other hand, the grant in favor of the predecessor of AMSAT is specifically limited to the duration of the agreement between AMSAT and Sequoyah. The initial term of that agreement expired on March 15, 1990. However, the agreement provides for automatic renewal for three successive four-year terms unless either party gives notice to the contrary. Apparently, the first four-year renewal is presently in effect. The grant in favor of AMSAT is exclusive with regard to cable television.

In 1989, pursuant to the Cable Act, Media requested Sequoyah to allow Media to place Media's lines in the common areas of the Sequoyah complex through master and other easements described supra. Sequoyah, citing to the exclusivity provision in its contract with AMSAT, refused so to do, despite the alleged desires of a majority of Sequoyah's residents to have Media provide such service. Thereafter, Media instituted this action, seeking declaratory and equitable relief to require Sequoyah pursuant to the Cable Act to permit Media to provide cable service to those residents who desire it.

The district court refused to grant such relief, holding that the right of access provided by section 621(a)(2) of the Cable Act is limited to easements which have been dedicated for public use and holding that none of the easements granted to Virginia Power, C & P or AMSAT or in the Master Deed are easements dedicated for public use. Upon Media's within appeal, we affirm the decision of the district court.

II.

After this case was instituted by Media, AMSAT moved to intervene. While the district court determined that AMSAT was not entitled to intervene as a matter of right under Federal Civil Rule 24(a)(2), it did grant permissive intervention under Federal Civil Rule 24(b)(2). No party questions, in this appeal, the district court's intervention rulings.

III.

The district court also ruled that section 621(a)(2) of the Act creates an implied private right of action in favor of a cable operator seeking access to compatible easements within its franchise area, largely relying upon Centel Cable Television Co. v. Admiral's Cove Associates, Ltd., 835 F.2d 1359 (11th Cir.1988). In Admiral's Cove, Judge Fay applied the four-step test set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). The court below similarly applied that Cort v. Ash test and, like the Eleventh Circuit in Admiral's Cove, held that the Cable Act created a private cause of action. We agree.

Section 621(a)(2) of the Cable Act provides as follows:

(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 served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure--

(A) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system;

(B) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both; and

(C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator.

In Cort v. Ash, Justice Brennan set forth the following four-step inquiry concerning whether a federal statute creates an implied private cause of action:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted,"--that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088 (citations omitted; emphasis in original).

There is little question but that Media is within the class of persons for whose benefit the Cable Act was enacted. ⁴ Nor is there any question that the cause of action Media asserts in this case is not one regulated normally by state law. Further, the legislative history indicates that Congress intended section 621 to enable operators of cable television systems to "piggy back" upon easements "dedicated for electric, gas or other utilities." H.R.Rep. 934, 98th Congress, 2d Sess. 59, reprinted in 1984 U.S.C.C.A.N. 4655, 4696. Accordingly, this action passes muster under the Cort v. Ash standards. ⁵

IV.

The court below, in its second opinion, concluded that the only compatible easements covered by section 621(a)(2) of the Cable Act are those dedicated for a public use.

There is no dispute that the four existing easements at Sequoyah are private easements, rather than public rights-of-way or dedicated easements. The district court, believing that the placement of Media's...