Media General Cable v. SEQUOYAH CONDO. COUNCIL

• Decision Date: 05 October 1989
• Docket Number: Civ. A. No. 89-1077-A.
• Citation: 721 F. Supp. 775
• Parties: MEDIA GENERAL CABLE OF FAIRFAX, INC., Plaintiff, v. SEQUOYAH CONDOMINIUM COUNCIL OF CO-OWNERS, Defendant, Amsat Communication, Inc., Proposed Intervenor-Defendant.
• Court: U.S. District Court — Eastern District of Virginia

721 F. Supp. 775

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

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

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

October 5, 1989.

David C. Kohler and E. Ford Stephens, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., for plaintiff.

Stephen R. Pickard, Alexandria, Va., for defendant.

Robert Rowan, Arlington, Va., for proposed intervenor-defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

This declaratory judgment action is a dispute between a condominium association and a cable television company concerning the placement of cable television facilities on the condominium complex's common areas. At issue specifically is whether Section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 541(a) (the Act), confers on cable television franchise holders a privately enforceable right of access to compatible use easements existing in their franchise area.¹ As an added ingredient, the cable operator currently serving the condominium complex seeks first to intervene, either as a matter of right, Fed.R.Civ.P. 24(a)(2), or permissively, Fed.R.Civ.P. 24(b)(2), and then to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim.

For the reasons stated here, intervention as a matter of right is denied, but permissive intervention is granted. Further, the motion to dismiss is denied as the Court concludes that Section 621 does authorize a private right of action to enforce its terms. The record is not adequately developed at this stage, however, to permit the Court to decide whether a right of access to compatible use easements exists under the specific circumstances at bar.

Background

Plaintiff, Media General Cable of Fairfax, Inc. (Media General), is a cable television company organized and operated under the laws of Virginia. It is the holder of a nonexclusive franchise to provide cable television services in the geographical area where the Sequoyah Condominium is located.

Sequoyah Condominium (Sequoyah) is an 1100 unit condominium complex located in Fairfax County, Virginia. The units fall into three distinct architectural designs: (1) adjoining townhouses,² (2) three-story garden style units,³ and (3) five-plex units.⁴ The interiors of each residential unit are owned by the individual unit owners.⁵ The common areas, including the building exteriors and grounds, are held collectively by the unit owners as tenants in common.⁶ The unit owners, in turn, are members of defendant, Sequoyah Condominium Council of Co-Owners (the Council), which is the organization responsible for administering the complex and the common areas and arranging for their management.

The proposed intervenor, Amsat Communication, Inc. (Amsat), like Media General, is also a provider of cable television services. It has no cable TV franchise for the surrounding area, but is the current provider of these services to Sequoyah pursuant to an exclusive contract expiring in 1998. Amsat's service is provided by means of a satellite dish and cable system,⁷ all located within the Sequoyah property. While there are minor variations for each building type, the system, in general, involves master cables connecting the satellite antenna with each building. The master cables run underground along the streets of the complex until they emerge from the ground and are connected to a splitter box attached to the building's side. From this box, individual service cables run from the exterior of the building inside to individual residences while the master cable continues on to the next building.⁸

This dispute arises because Media General desires to provide cable service to certain individual residences at Sequoyah in response to requests from their owners. Media General seeks to furnish the requested service by using existing compatible utility easements to gain access to each of the individual units requesting service. The Council has refused to permit Media General to use or have access to the existing compatible easements. According to the Council, it is prohibited from giving Media General the requested access by virtue of the exclusive nature of its contract with Amsat.

The existing compatible easements Media General desires to use stem chiefly from a blanket easement that appears in the Sequoyah Condominium Master Deed. That blanket easement states:

"There is hereby granted a blanket easement upon, across, over, and under all of the property of the Condominium 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 notwithstanding anything to the contrary contained in this paragraph, ... no utilities may be installed or relocated on said property except as ... thereafter approved by the Council."

In addition to this broad blanket easement, certain specific easements were granted to various utilities. Among these, significantly, is the easement the Council granted to Amsat to place coaxial cables underground throughout the complex and to route these cables along the outside and inside of buildings for the purpose of providing service to individual units. Media General claims that all the utility easements, including the blanket easement, are compatible for use with its system.

Media General filed this action seeking a declaration, pursuant to 28 U.S.C. § 2201, of its right under Section 621 of the Act to construct a cable television system through the existing compatible easements at Sequoyah. Media General claims it does not seek to force its way into any residence over an owner's objection. Instead, Media General contends it seeks to serve only those unit owners who have requested its service. To do so, however, Media General must gain access to the existing compatible utility easements, access which it claims a right to under the Act. Proposed Intervenor, Amsat, seeks intervention as of right and permissively, and moves to dismiss on the ground that the Act confers no such enforceable right on Media General and hence the complaint fails to state a claim.

Analysis

A. Motion to Intervene.

A movant seeking intervention as a matter of right must show that "(1) it has an interest in the subject matter of the action, (2) disposition of the action may practically impair or impede the movant's ability to protect that interest, and (3) that interest is not adequately represented by the existing parties." Newport News Shipbuilding & Drydock Co. v. Peninsula Shipbuilders, 646 F.2d 117, 120 (4th Cir. 1981); see also Fed.R.Civ.P. 24(a)(2); Merritt Commercial Sav. & Loan v. Guinee, 766 F.2d 850, 853 (4th Cir.1985) (citing Peninsula Shipbuilders); CFTC v. Heritage Capital Advisory Servs., 736 F.2d 384, 386 (7th Cir.1984). In holding that the NLRB had a right to intervene in Peninsula Shipbuilders, the Fourth Circuit found the requisite "interest in the subject matter of the action" in the Board's need "to protect its jurisdiction and processes against the possibility of a district court judgment in conflict with its own in a pending unfair labor practice proceeding." Id. at 122. Jurisdictional integrity is plainly a vital and legitimate NLRB interest. It is an interest central to the Board's mission and one not adequately safeguarded absent intervention. As such, it was undeniably an interest sufficient to support intervention as a matter of right. Amsat has no comparable interest here. At best, Amsat's interest is limited to potential, indeed speculative, competitive injury. Such an interest does not rise to the level required for intervention as a matter of right. Precisely this conclusion was reached recently by a district court in an essentially similar case. In Rollins Cablevue v. Saienni Enters., 115 F.R.D. 484 (D.Del.1986) (hereinafter Rollins), the plaintiff, a franchised cable service provider, brought suit to enjoin the owner of a multiple unit apartment complex and an unfranchised rival company from interfering with plaintiff's installed cables and from installing and operating another cable television system at the complex. After threshold motions, the claim against the rival company was dismissed because the court concluded there was no explicit or implicit cause of action in the Act for a franchised cable operator to enjoin an unfranchised one. Id. at 485. Left standing was plaintiff's suit against the owner to enjoin the latter from removing or tampering with the plaintiff's installed cables. The basis of plaintiff's suit against the owner was the claim that Section 621 conferred on plaintiff, as a franchise holder, the right to use the compatible use easements without interference. At this point, the successor company to the just-dismissed rival sought intervention, inter alia, on the ground of potential competitive injury. The court denied intervention as a matter of right noting that the proposed intervenor's interest was "speculative and inadequate." Id. at 487. The reasoning in Rollins applies with equal force here and the same result should obtain. Media General does not seek in this action to bar Amsat from providing cable services to the complex. Instead, Media General seeks only to establish its right under Section 621 of the Act to gain access to the complex via existing compatible easements.

The heart of this case is the interpretation of Section 621. By no means can it be said that Amsat, as a potential competitor of a cable TV company,...