NYT Cable TV v. Homestead at Mansfield, Inc., A-49 and N

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: PER CURIAM; HANDLER; STEIN
• Citation: 543 A.2d 10,111 N.J. 21
• Parties: NYT CABLE TV, Plaintiff-Respondent, v. HOMESTEAD AT MANSFIELD, INC., Homestead at Mansfield Homeowners Association, Inc., Michael Laino and Daniel Quigley, Defendants-Appellants, and New Jersey Board of Public Utilities, Respondent. In the Matter of the Application of TKR CABLE COMPANY for Access to Premises Known as Society Hill at Piscataway Pursuant to N.J.S.A. 48:5J.A.C. 14:18-3.10(c)(1).
• Docket Number: A-49 and N
• Decision Date: 28 June 1988

Page 21

111 N.J. 21 543 A.2d 10 NYT CABLE TV, Plaintiff-Respondent,
v.
HOMESTEAD AT MANSFIELD, INC., Homestead at Mansfield
Homeowners Association, Inc., Michael Laino and
Daniel Quigley, Defendants-Appellants,
and
New Jersey Board of Public Utilities, Respondent.
In the Matter of the Application of TKR CABLE COMPANY for
Access to Premises Known as Society Hill at
Piscataway Pursuant to N.J.S.A. 48:5A-49
and N.J.A.C. 14:18-3.10(c)(1). Supreme Court of New Jersey. Argued Nov. 9, 1987.
Decided June 28, 1988.

[543 A.2d 11]

Page 22

W. James MacNaughton, Morristown, for appellant Society Hill at Piscataway Condominium Ass'n, Inc. (A-43/44) and submitted a letter brief on behalf of amici curiae Hovbilt, Inc., K. Hovnanian at Piscataway, Inc., Society Hill at Piscataway Condominium Ass'n, Inc., K. Hovnanian at Bernards, Inc., Society Hill at Bernards Condominium Ass'n, Inc., RCK Cable Co., and Channel One Systems, Inc. (Schenck, Price, Smith & King, attorneys; W. James MacNaughton and Douglas S. Brierley, on the briefs).

Douglas K. Wolfson, Iselin, for appellant K. Hovnanian at Piscataway, Inc. (A-43/44) (Greenbaum, Rowe,

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Smith, Ravin, Davis & Bergstein, attorneys; Douglas K. Wolfson and Bruce D. Greenberg, on the briefs).

Philip B. Seaton, Cherry Hill, for appellants Homestead at Mansfield, Inc., et al. (A-42) (Kozlov, Seaton & Romanini, attorneys).

Francis R. Perkins, Newark, for respondent TKR Cable Co., (A-43/44) and amicus curiae New Jersey Cable Television Ass'n (A-42) (LeBoeuf, Lamb, Leiby & MacRae, attorneys; Francis R. Perkins, Thomas C. Kelly and Ruth A. Bosek, on the briefs).

Peter J. Pizzi, Roseland, for respondent NYT Cable TV (A-42) (Connell, Foley & Geiser, attorneys).

Susan B. Vercheak, Deputy Atty. Gen., for respondent New Jersey Bd. of Public Utilities (W. Cary Edwards, Atty. Gen. of New Jersey, attorney; Andrea M. Silkowitz, Deputy Atty. Gen., of counsel).

Jeffrey L. Reiner, Newark, submitted a brief on behalf of amicus curiae Ocean Cablevision Associates (Meyner and Landis, attorneys).

[543 A.2d 12] PER CURIAM.

The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.

HANDLER, J., concurring.

In this case we are asked to examine whether the statutory scheme found in the Cable Television Act (the "Act"), N.J.S.A. 48:5A-1 to -53, and more specifically its access rights section, N.J.S.A. 48:5A-49 ("Section 49"), is constitutional. There can be no quarrel with the proposition that, under the Act, entry on any property and the installation of cable television constitutes the taking of property for which just compensation must be paid as a matter of constitutional due process. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Within this constitutional framework

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we must resolve two issues: (1) whether Section 49 as enacted can reasonably be construed to require the payment of just compensation; and (2) if not, whether the Legislature would have wanted Section 49 to be so construed in order to preserve the constitutionality--and the survival--of the overall statutory scheme of the Act.

The dissenting opinion, taking the position that both of these issues must be resolved against the constitutionality and survival of the regulatory scheme, presents in detail the procedural posture and relevant facts of this appeal. Post at 18-22. I readily incorporate this presentation as a basis for explaining separately why I conclude that the statutory scheme, regardless of its wisdom or efficacy, is constitutional. It is, I submit, entitled to be upheld by the Court, which should leave the Legislature free to deal with the subject as it sees fit.

I.

I believe that Section 49 is susceptible of an interpretation that would, as a matter of imputed legislative interest, require the payment of just compensation for the entry on property for purposes of installing cable television. Section 49 can be viewed as having distinctive segments, each governing different aspects of the relationship between the several parties involved in the installation of cable television. So viewed, the statute can be read to permit--not to bar--the payment of compensation to the owner of property for the rights of access.

The initial part of Section 49 can be understood as primarily governing the relationship between owner and tenant. It provides that

[n]o owner of any dwelling or his agent shall forbid or prevent any tenant of such dwelling from receiving cable television service, nor demand or accept payment in any form as a condition of permitting the installation of such service in the dwelling or portion thereof occupied by such tenant as his place of residence, nor shall discriminate in rental charges or otherwise against any such tenant receiving cable television service ...

[ N.J.S.A. 48:5A-49 (emphasis added).]

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This clearly focuses on owners' treatment of their tenants, prohibiting them from demanding any payment from these tenants for installation of cable television. See Princeton Cablevision, Inc. v. Union Valley Corp., 195 N.J.Super. 257, 270, 478 A.2d 1234 (1983).

The second part of Section 49 deals essentially with the nature or consequences of installation, permitting owners to require that the cable service not be installed in a damaging manner. It provides

that such owner or his agent may require that the installation of cable television facilities conforms to all reasonable conditions necessary to protect the safety, functioning, appearance and value of the premises and the convenience, safety and well-being of other tenants ...

N.J.S.A. 48:5A-49.

In its final aspect, Section 49, quite apart from its basic prohibition against demanding payment from tenants, provides that owners can demand that cable companies pay them for any damages done to their property as a result of faulty installation. The Section thus states

543 A.2d 13] that a cable television company installing any such facilities for the benefit of a tenant in any dwelling shall agree to indemnify the owner thereof for any damage caused by the installation, operation or removal of such facilities and for any liability which may arise out of such installation, operation or removal. [Ibid.

I do not suggest that it is linguistically impossible to read Section 49, as does the dissent, namely, that the statute plainly, flatly, absolutely bars the payment of just compensation to an owner by a cable television company for rights of access and installation. Nevertheless, it is plausible to understand Section 49 as not expressly or impliedly prescribing such a prohibition. ¹ The language does present alternative interpretations.

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II.

N.J.S.A. 48:5A-49 is not neutral to the subject of damages; it can, however, be viewed as being neutral toward the issue of compensation. Its express language can be said neither to prohibit nor to require the payment of just compensation. The failure explicitly to require the payment of just compensation, however, does not mandate the conclusion that the statute bars the payment of such compensation, rendering the statute unconstitutional. Whether a statute must be so read and thus deemed unconstitutional turns on the intent of the Legislature.

One of the basic guidelines in analyzing the constitutionality of a statute is "the presumption that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner." State v. Profaci, 56 N.J. 346, 349, 266 A.2d 579 (1970); see Alling St. Urban Renewal Co. v. City of Newark, 204 N.J.Super. 185, 191, 497 A.2d 1287 (App.Div.1985), certif. den., 103 N.J. 472, 51 A.2d 653 (1986). The articulation of all of the essential elements demonstrating such legislative intent need not appear in the statutory language itself. See Profaci, supra, 56 N.J. at 349, 266 A.2d 579; Lomarch Corp. v. Mayor of Englewood, 51 N.J. 108, 113, 237 A.2d 881 (1968); Juzek v. Hackensack Water Co., 48 N.J. 302, 315, 225 A.2d 335 (1966).

This Court has found that statutory schemes involving takings can be said implicitly to authorize the payment of just compensation despite the absence of any language to this effect. Thus, in Lomarch, supra, the Court noted that a statute

often speaks as plainly by inference as by express words. The details for the accomplishment of a statutory objective do not have to be specifically spelled out with particularity. It is not always essential in order to avoid unconstitutionality, that provisions to insure compliance with the Federal or State constitution

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be spelled out in detail. Whenever the legislature authorizes ... action which, if taken, would require, under the constitution, that just compensation be paid, it follows that if ... [the authorized party] wishes to exercise that power it must comply with the constitutional mandate and pay. The statute is not constitutionally defective for failure to expressly provide for compensation.

[51 N.J. at 113, 237 A.2d 881 (citation omitted).]

The statutory silence of Section 49 concerning just compensation is similar to that dealt with in Lomarch. A comparable understanding, viewing the Act as implicitly authorizing the payment of just compensation to owners, is readily available.

The scheme of Section 49 can be distinguished from situations where a statute [543 A.2d 14] flatly and irreversibly bars compensation. For example, in Storer Cable T.V. of Florida, Inc. v. Summerwinds Apartments. Assocs. Ltd., 493 So.2d 417 (Fl.1986), the Florida Supreme Court dealt with a statute that explicitly declared "nor shall [a] ... cable television service be required to pay anything of value in order to ... provide such service...." Fla.Stat. § 83.66(1) (held unconstitutional). The lack of any room to maneuver with this language thus precluded any saving interpretation. Cf. New Jersey Board of Higher Education v. Shelton College, 90 N.J. 470,...