Mumaugh v. Diamond Lake Area Cable TV Co.

• Decision Date: 18 December 1981
• Citation: 456 N.W.2d 425,183 Mich.App. 597
• Parties: Gordon MUMAUGH and Marian Mumaugh, husband and wife, Individually and in their capacity as Trustees for John Mumaugh and Vicary Mumaugh; and David Squires, Individually and in his capacity as Trustee of the David E. Squires Irrevocable Living Trust, U/T/A
• Court: Court of Appeal of Michigan — District of US

Page 425

456 N.W.2d 425

Gordon MUMAUGH and Marian Mumaugh, husband and wife Individually and in their capacity as Trustees for John Mumaugh and Vicary Mumaugh; and David Squires, Individually and in his capacity as Trustee of the David E. Squires Irrevocable Living Trust, U/T/A 12-18-81 Plaintiffs-Appellants, v. DIAMOND LAKE AREA CABLE TV COMPANY, a limited partnership Defendant-Appellee.

Docket No. 112860.

183 Mich.App. 597, 456 N.W.2d 425

Court of Appeals of Michigan.

Submitted Jan. 9, 1990.

Decided May 7, 1990.

Released for Publication June 1, 1990.

[183 MICHAPP 598] Westrate, Holmstrom & Dobrish by Mark A. Westrate, Dowagiac, for plaintiffs-appellants.

Miller, Canfield, Paddock & Stone by Michael B. Ortega, Kalamazoo, for defendant-appellee.

Before MURPHY, P.J., and HOOD and NEFF, JJ.

MURPHY, Presiding Judge.

Plaintiffs appeal as of right from the trial court's grant of summary disposition in favor of defendant under MCR 2.116(C)(8), failure to state a claim on which relief can be granted. The court ruled that, as a matter of law, 47 U.S.C. Sec. 541(a)(2) gave defendant cable television company a right of access to use easements dedicated to compatible uses. The court further ruled that the easement held by Indiana and Michigan Electric Company (I & M) was dedicated to a use compatible with defendant's use of the easement. The court [183 MICHAPP 599] further found that no genuine issues of fact existed and that defendant was entitled to judgment as a matter of law. MCR 2.116(C)(10). We affirm.

Plaintiffs are the owners of properties situated in Silver Creek Township, Cass County. Plaintiffs held this property subject to a pole-line easement granted to I & M in 1922 by plaintiffs' predecessors in interest. The conveying instrument described I & M's interest as follows:

[T]he right and easement to erect, maintain and operate in perpetuity a line of poles for the supporting of electric power, telephone and telegraph wires, and the transmission thereby of electrical energy, power, light, heat or messages or anything, and for such further or other different uses and purposes or methods and needs as may hereafter prove practical.

In 1986, defendant was awarded a franchise to provide cable television service in Silver Creek Township. Shortly before receiving the franchise, defendant entered into an agreement with I & M for the use of I & M's utility poles. However, the agreement expressly stated that I & M was not conveying or guaranteeing any easement, right of way, or franchise for the construction and maintenance of defendant's attachments to the I & M utility poles. Defendant agreed to indemnify and defend I & M against claims arising out of defendant's failure to secure the right, license, permit, or easement to construct and maintain its attachments on I & M's poles.

In 1987, defendant attached its cable television wires to the I & M poles across the easement on plaintiffs' property. Plaintiffs demanded that defendant remove the wires. When defendant failed to comply, plaintiffs commenced the present action [183 MICHAPP 600] alleging claims for trespass and unjust enrichment or quantum meruit.

On appeal, plaintiffs contend that the trial court erroneously granted summary disposition in defendant's favor because 47 U.S.C. Sec. 541(a)(2) does not give defendant an absolute right to install its cable television wires across a privately granted easement, regardless of whether the easement was dedicated to a compatible use. We disagree.

Section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. Sec. 541(a)(2), provides:

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, 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.

Plaintiffs argue that the term "public" as used in the statute modifies both rights of way and easements. Plaintiffs conclude that Congress intended to except a privately granted easement, such as the one at issue in the present case, from the general right of access granted in the statute. [183 MICHAPP 601] Conversely, defendant argues, and the trial court agreed, that the plain language of 47 U.S.C. Sec. 541(a)(2), its legislative history, and judicial interpretation of the statute reveal a clear intent by Congress to grant franchised cable television companies a federal right to use any "easements dedicated to compatible uses," whether public or private. After reviewing the applicable federal case law, we agree with defendant.

The majority of courts that have construed the statute have rejected arguments that 47 U.S.C. Sec. 541(a)(2) grants only a right to construct cable television lines through publicly dedicated easements. Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund VI, Ltd., 678 F.Supp. 871, 873 (N.D.Ga.1986); Rollins Cablevue, Inc. v. Saienni Enterprises, 633 F.Supp. 1315 (D.Del.1986). See also Cable TV Fund 14-A, Ltd. v. Property Owners Ass'n Chesapeake Ranch Estates, Inc., 706 F.Supp. 422, 434 (D.Md.1989) (cable company had a right to gain access to private residential community along easements therein which were dedicated for compatible uses); Greater Worcester Cablevision, Inc. v. Carabetta Enterprises, Inc., 682 F.Supp. 1244 (D.Mass.1985) (land owner conceded cable company's right to use whatever easements and public rights of way that were on the property so long as the use was compatible). In reaching this conclusion, the courts have relied on the legislative intent expressed in the language of the cable act itself and on the legislative history of the act.

47 U.S.C. Sec. 521 provides in pertinent part:

The purposes of this subchapter [47 U.S.C. Sec. 521 et seq. ] are to--

(1) establish a national policy concerning cable communications;

(2) establish franchise procedures and standards [183 MICHAPP 602] which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community.

Additionally, the Report from the House Committee on Energy and Commerce stated:

Subsection 621(a)(2) [codified at 47 U.S.C. Sec. 541(a)(2) ] specifies that any franchise issued to a cable system authorizes the construction of a cable system over public rights-of-way, and through easements, which have been dedicated to compatible uses. This would include, for example, an easement or rights-of-way dedicated for electric, gas or other utility transmission. Such use is subject to the standards set forth in section 633(b)(1)(A), (B) and (C). Consideration should also be given to the terms and conditions under which other parties with rights to such easements and rights-of-way make use of them. Any private arrangements which seek to restrict a cable system's use of such easements or rights-of-way which have been granted to other utilities are in violation of this section and not enforceable. [H.R.Rep. No. 934, 98th Cong. (2d Sess.) 59, reprinted in 1984 U.S.Code Cong. & Admin.News 4655, 4696.]

See also Centel Cable Television of Florida v. Admiral's Cove Associates, 835 F.2d 1359, 1362, n. 5 (C.A. 11, 1988) ("Congress intended to authorize the cable operator to 'piggyback' on easements 'dedicated for electric, gas, or other utility transmission' "). We believe that the broad scope of the above-expressed congressional intent requires a broad reading of the phrase "dedicated to compatible uses" to include any easements granted to a public utility for a use compatible with cable television.

However, we also note that there are decisions which reach a somewhat different conclusion. In [183 MICHAPP 603] Cable Investments, Inc. v. Woolley, 867 F.2d 151 (C.A. 3, 1989), the United States Court of Appeals for the Third Circuit rejected a cable company's argument that 47 U.S.C. Sec. 541(a)(2) allows cable operators to use any easements dedicated to a use compatible with the provision of cable television services. The Court stated that there was no support in the express language of the statute for a finding that "... Congress had authorized franchised cable operators to force their way onto private property, over the protests of the property owner, in order to offer cable television services to the tenants of the property owner." Id., at 155. The Court noted that Congress had ultimately deleted proposed sections of the cable act which granted cable operators mandatory access to multi-unit dwellings, provided for a system of just compensation for such takings and prohibited the property owners of multi-unit dwellings from demanding more than just compensation for such access. Consequently, the Court concluded that the cable operator had no right of access to the interior of a multi-unit apartment dwelling. Id., at 155-159.

However, we believe that Cable Investments, supra, is easily distinguished from the present case. Because the deleted proposed Sec. 633 was directly applicable to the very issue presented in Cable Investments, the Court logically and properly concluded that Congress, by deleting that section, did not intend to allow cable operators to compel access to multi-unit apartment dwellings. The Cable Investments decision was also based, in part, on the fact that proposed...