Media General Cable v. Sequoyah Condo. Council

• Decision Date: 22 May 1990
• Docket Number: Civ. A. No. 89-1077-A.
• Parties: MEDIA GENERAL CABLE OF FAIRFAX, INC., Plaintiff, v. SEQUOYAH CONDOMINIUM COUNCIL OF CO-OWNERS, Defendant, Amsat Communication, Inc., Intervenor-Defendant.
• Court: U.S. District Court — Eastern District of Virginia

737 F. Supp. 903

MEDIA GENERAL CABLE OF FAIRFAX, INC., Plaintiff, v. SEQUOYAH CONDOMINIUM COUNCIL OF CO-OWNERS, Defendant, Amsat Communication, Inc., Intervenor-Defendant.

Civ. A. No. 89-1077-A.

United States District Court, E.D. Virginia, Alexandria Division.

May 22, 1990.

David C. Kohler and E. Ford Stephens, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., for Media General Cable of Fairfax, Inc.

Stephen R. Pickard, Alexandria, Va., for Sequoyah Condominium Council of Co-Owners.

Robert A. Rowan, Nixon & Vanderhye, Arlington, Va., and W. James MacNaughton, Schenck, Price, Smith & King, Morristown, N.J., for Amsat Communication, Inc., intervenor.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

In this declaratory judgment action, Media General Cable of Fairfax, Inc. ("Media General"), a cable television franchisee, seeks a declaration that Section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 541(a)(2) (the "Act"), entitles it to install its cable wires in compatible easements on the Sequoyah Condominium's ("Sequoyah") common areas. The Sequoyah Condominium Council of Co-Owners ("the Council"), the condominium's governing body, acting pursuant to an exclusivity provision in its agreement with the current television provider, Amsat Communication, Inc. ("Amsat"), has thus far refused Media General permission to install its equipment. In an earlier opinion in this case,¹ the Court permitted Amsat's intervention and ruled that the Act provided Media General with an implied private cause of action to enforce whatever rights it might have under the Act. At the conclusion of the prior opinion, the Court directed the parties to submit materials responsive to seven questions.² These questions were designed to elicit responses that would establish a factual record adequate to allow the Court to determine whether the Act confers on Media General any rights to use the specific easements that exist at Sequoyah. The parties' responses produced such a record and also disclose that no material fact is genuinely disputed. The matter is therefore ripe for summary disposition. See Rule 56, Fed.R.Civ.P. The Court must now determine whether the previously found implied private right of action fits the facts of this case.

Facts³

Media General holds a nonexclusive cable television franchise in Fairfax County, Virginia, the county within which Sequoyah is located. Sequoyah contains 1018 individual units consisting of three distinct building types: (1) adjoining townhouses, (2) three story garden style units, and (3) five plex units. Individual unit owners own the interiors of each residential unit, but the common areas, i.e., the building exteriors and grounds, are held jointly by all the unit owners as tenants-in-common. The Council, composed collectively of all unit owners, is responsible for administering the complex and supervising its management. Pursuant to this power, the Council entered into an exclusive contract with Amsat's predecessor to provide television service to Sequoyah via a satellite master antenna television system. Amsat is not franchised. Amsat's current contract expires in 1998, but may be subject to renewal by the parties.

Media General claims it was approached by several unit owners about receiving its cable service. Media General then sought the Council's permission to lay its cable across the complex's common areas. The Council denied access, citing an exclusivity clause in the Amsat agreement. Media General now seeks a judicial determination of its right to compel access pursuant to section 621(a)(2) of the Act, which provides in pertinent part:

Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is sic within the area to be served by the cable system and which have been dedicated for compatible uses....

47 U.S.C. § 541(a)(2). Specifically, Media General asserts that there are four "compatible" easements at Sequoyah through which it has a right under the Act to lay its cable: (1) a Virginia Power easement, (2) a C & P Telephone easement, (3) Amsat's television easement, and (4) a blanket utility easement in Sequoyah's Master Deed.

The Virginia Power easements grant the utility a perpetual right to use rights-of-way across the Sequoyah common areas "to lay, construct, operate and maintain one or more lines of underground conduits and cables as Company may from time to time deem expedient or advisable ... for the purpose of transmitting and distributing electric power by one or more circuits; and for telephone, television and other communication purposes." There are two types of Virginia Power rights-of way: (i) designated, i.e., those shown on plats recorded in Fairfax County's land records and (ii) undesignated, i.e., those not shown on recorded plats. The designated rights-of-way are 10 feet wide. Undesignated rights-of-way extend from the designated rights-of-way to the improvements on each lot shown on the plat through an unspecified route discretionarily selected by Virginia Power.

The C & P Telephone easements at Sequoyah, like those of Virginia Power, also permit the installation and maintenance of an underground cable system in designated rights-of-way of various widths (8-15 feet). Notably, these perpetual easements permit C & P to carry "the wires, cables, circuits and appurtenances of any other Company, including all electric wires" within the boundaries of the rights-of-way.

In contrast to the Virginia Power and C & P Telephone easements, the Amsat easement is entirely undesignated. It grants Amsat permission to construct and maintain its system anywhere in the common areas. The corresponding licensing agreement between Sequoyah and Amsat specifies where certain large pieces of equipment are to be located, but neither it nor the easement specifies where the remainder of the system, including the underground cable, is to be placed. Also, unlike the other easements, Amsat's right of access is not perpetual; it is limited to the duration of Amsat's agreement with Sequoyah or any renewal of that agreement. As of now, Amsat's agreement, if not renewed, will expire in 1998.

The final easement Media General claims is "compatible" and usable under the Act is a blanket utility easement. Section XIV(B) of the Sequoyah Master Deed⁴ grants:

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 residences.sic Notwithstanding 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 ... 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.

Though not explicit, the last sentence suggests that this easement was granted to utility companies in the abstract so they could provide service to the future Sequoyah unit owners. The only right reserved in the grant is that the Council must approve the location of the utility's system.

Analysis

The inquiry appropriately begins with a statement of Media General's position. Simply put, Media General asserts that § 621 of the Act is a valid land use regulation that gives a cable television franchisee a statutory right to lay its cable over or under those areas of a landowner's property that are already the subject of private, "compatible", i.e. similar, use easements. This position is fundamentally flawed; it rests on alternative assumptions: either, as claimed, that use of any of the easements at Sequoyah would not constitute a taking or the unstated assumption that the Act authorizes takings of private property. Neither of these assumptions is true. Close scrutiny of the Act's terms and its legislative history compels the conclusion that the Act does not authorize the taking of private property; instead it confers on cable television franchisees the far more limited right of access (1) "over public rights-of-way" and (2) through easements "which have been dedicated for compatible uses." 47 U.S.C. § 541(a)(2). And, an examination of the easements Media General seeks access to in this case discloses that they are neither "public rights-of-way" nor "dedicated" easements. Elucidation of this conclusion requires consideration of the following series of questions:

(I) Does the placement of Media General's cable in or along private easements involve a taking of private property in the constitutional sense?

(II) Does the Act permit such a taking?

(III) Are the four easements at Sequoyah private easements, public rights-of-way, or dedicated easements?

(IV) Does limiting a cable television franchisee's right of access under the Act to public rights-of-way or dedicated easements render the Act a nullity?

I

Prior to 1982, legislation granting access to cable television franchisees was viewed as a land use regulation that might or might not rise to the level of a taking depending on the application of the ad hoc, multifactor inquiry described in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).⁵ This changed when the Supreme Court handed down Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102...