New England Cable Television Ass'n, Inc. v. Department of Public Utility Control, 15892

• Decision Date: 22 September 1998
• Docket Number: No. 15892,15892
• Citation: 247 Conn. 95,717 A.2d 1276
• Court: Connecticut Supreme Court
• Parties: , 188 P.U.R.4th 555 NEW ENGLAND CABLE TELEVISION ASSOCIATION, INC., et al. v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

Page 1276

717 A.2d 1276

247 Conn. 95, 188 P.U.R.4th 555

NEW ENGLAND CABLE TELEVISION ASSOCIATION, INC., et al. v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

No. 15892.

Supreme Court of Connecticut.

Argued May 29, 1998.

Decided Sept. 22, 1998.

Christopher J. Harvie, pro hac vice, with whom were Christopher A. Holt, Marti Green, Burton B. Cohen and, on the brief, Donna N. Lampert, pro hac vice, and Everett E. Newton and Anthony J. Dolce, Hartford, for appellants (plaintiff Cablevision of Connecticut, Limited Partnership, et al.).

Tatiana D. Sypko-Eirmann, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellee (named defendant).

David W. Schneider, New Haven, with whom were Michael C. D'Agostino, Hamden, and, on the brief, Kathleen A. Carrigan, New Haven, for appellees (defendant SNET Personal Vision, Inc., et al.).

Phyllis J. Trowbridge, Glastonbury, for appellee (defendant Office of Consumer Counsel).

Before CALLAHAN, C.J., and BERDON, NORCOTT, PALMER and McDONALD, JJ.

CALLAHAN, Chief Justice.

The plaintiffs, Cablevision of Connecticut, Limited Partnership (Cablevision), and Cablevision Systems of Southern Connecticut, Limited Partnership (Cablevision Systems), appeal from the judgment of the trial court dismissing their administrative appeal from a decision of the named defendant, the department of public utility control (department), granting the defendant SNET Personal Vision, Inc. (Personal Vision), a certificate of public convenience and necessity for a statewide franchise to provide community antenna television service, commonly referred to as CATV or cable. ¹ The plaintiffs, competing cable providers, contend that the trial court improperly determined that: (1) the department is authorized to issue a certificate of public convenience and necessity for a statewide franchise; (2) the department was within its authority to exempt Personal Vision from certain regulations; and (3) the department properly conducted the necessary comparison between the terms and conditions contained within Personal Vision's certificate of public convenience and necessity and those of the existing certificates. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed. The department is a state agency authorized pursuant to title 16 of the General Statutes to regulate and supervise the operation of public service companies. As such, it is authorized to certify, regulate and supervise cable operators. Personal Vision, a wholly owned subsidiary of Southern New England Telecommunications Corporation and an operating affiliate of the Southern New England Telephone Company (Southern New England), seeks to provide cable service within Connecticut and is, therefore, subject to certification and regulation by the department. The plaintiffs, two incumbent cable franchisees authorized to provide cable service in two franchise areas located in southwestern Connecticut, will be competitors of Personal Vision.

Pursuant to General Statutes § 16-331(a), ² no entity may provide cable services unless the department issues it a certificate of public convenience and necessity. As a result of the limitations of cable technology, franchises to operate cable systems heretofore have been authorized for relatively small, community-based franchise areas. Currently, there are twenty-four franchise areas in Connecticut serviced by twelve operators. To date, the cable operator within each franchise area has enjoyed a monopoly, even though the General Assembly enacted Public Acts 1985, No. 85-509, § 6, which amended § 16-331(a) to permit competition in the cable industry. Section 16-331(a), as it incorporates Public Acts 1985, No. 85-509, § 6, provides that "[t]he department may issue more than one such certificate for any franchise area or portion of a franchise area." In more than one decade since the repeal of the monopoly system, however, no effective competition has come to exist in Connecticut's cable industry. ³

On January 25, 1996, the department received an application from Personal Vision seeking a certificate of public convenience and necessity to provide cable services for the entire state. Prior to Personal Vision's application, the department had never received an application for a statewide franchise. Personal Vision proposed to build out its system at a rate that would provide full cable service to the entire state by the year 2009. Personal Vision anticipates meeting this rigorous deployment schedule by employing the hybrid fiber coaxial network of its operating affiliate, Southern New England, a telephone company.

The department conducted extensive public hearings during which it heard from members of the public and the cable industry regarding the issuance of a statewide franchise to Personal Vision. Additionally, the department conducted hearings at which all of the parties and intervenors were provided with the opportunity to present evidence and to cross-examine witnesses. The plaintiffs having been made parties to the proceedings before the department, fully participated in the hearings. They vigorously opposed authorization of a statewide franchise, as well as certain other terms and conditions of Personal Vision's proposed certificate. The department, by decision dated September 25, 1996, concluded that the grant of a statewide franchise would be beneficial to the public and was within its authority. It, therefore, granted Personal Vision a certificate of public necessity and convenience designating the entire state of Connecticut as its franchise area.

The plaintiffs appealed from the department's decision to the trial court pursuant to General Statutes §§ 4-183 and 16-35(a). ⁴ In the trial court, Personal Vision asserted, by way of a special defense, that the plaintiffs were without standing, owing to lack of aggrievement, to raise any claim except those that could be raised pursuant to § 16-331(g). ⁵ Section 16-331(g), commonly denominated as the "level playing field" statute, prohibits the department from issuing a certificate to a competing franchisee that contains more favorable terms or conditions than those applicable to incumbent franchisees. The court concluded that all of the plaintiffs' claims could be addressed within the context of the plaintiffs' § 16-331(g) claims of unfair competition because they related to their claim that more favorable terms allegedly were afforded to Personal Vision. The court dismissed the plaintiffs' appeal, however, concluding that the certificate of public convenience and necessity granted to Personal Vision did not contravene § 16-331(g). Specifically, the court concluded that: (1) the grant of a statewide franchise to Personal Vision was within the statutory authority of the department pursuant to § 16-331 (a); (2) the department properly had concluded that the build-out regulations ⁶ were not applicable to Personal Vision; and (3) the department had conducted a proper comparison between the terms and conditions of the incumbent franchise certificates and Personal Vision's franchise certificate. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now § 65-1, and General Statutes § 51-199(c). We affirm the judgment of the trial court.

I

The plaintiffs first challenge the department's decision to grant a statewide franchise to Personal Vision. They assert that § 16-331(a) precludes the department from granting a competing franchise that will serve the entire state. See footnote 2 of this opinion. The plaintiffs argue that, pursuant to the terms of § 16-331(a), the department may issue a certificate to a new competitor to operate only within existing franchise boundaries. According to the plaintiffs, Personal Vision's certificate of public convenience and necessity authorizing a statewide franchise area is, therefore, unlawful because it violates the terms of § 16-331(a).

Relying on our decision in United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 342-43, 663 A.2d 1011 (1995), Personal Vision argues that, owing to a lack of aggrievement, the plaintiffs lack standing to raise the legality of the department's decision to authorize a statewide franchise. The plaintiffs assert that they may challenge the legality of a certificate of public convenience and necessity issued to a competitor either directly under the rationale of State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987), ⁷ or in conjunction with their right to be free from unfair competition pursuant to § 16-331(g). We agree with Personal Vision.

"Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal.... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.... [T]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Citations omitted; internal quotation marks omitted.) United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. at 342-43, 663 A.2d 1011. For the reasons that follow, we agree with Personal Vision...