Richland County v. Palmetto Cablevision, 19692

• Decision Date: 07 September 1973
• Docket Number: No. 19692,19692
• Citation: 199 S.E.2d 168,261 S.C. 222
• Court: South Carolina Supreme Court
• Parties: RICHLAND COUNTY, State of South Carolina, Appellant, v. PALMETTO CABLEVISION, Respondent.

Page 168

199 S.E.2d 168

261 S.C. 222

RICHLAND COUNTY, State of South Carolina, Appellant, v. PALMETTO CABLEVISION, Respondent.

No. 19692.

Supreme Court of South Carolina.

Sept. 7, 1973.

Frank K. Sloan, Columbia, for appellant.

John Gregg McMaster and Robert J. Thomas, Columbia, for respondent.

PER CURIAM:

In this action the appellant Richland County sought to enjoin the respondent from operating and maintaining a cable television system in Richland County, and now appeals from a judgment of the lower court denying that relief. The exceptions are twenty in number and none of them have been expressly abandoned. We have encountered some difficulty in determining just precisely which ones have been abandoned through failure to argue the same in appellant's brief, though it is clear that many have been abandoned. In any event, appellant has failed to convince this Court of any merit in its appeal.

To the extent necessary to an understanding of the issues of this case, the order of the lower court will be reported herewith. Substantial portions thereof will, however, be omitted from publication, since such are not here challenged. Additionally, for the reasons set forth below, no useful purpose would be served by publishing much of the decree dealing with the unconstitutionality of Act No. 1083 of the 1972 Acts of the General Assembly of South Carolina.

His Honor held said Act to be special legislation and unconstitutional in violation of Article III, Sec. 34 of the South Carolina Constitution. Additionally, he concluded that said Act was unconstitutional as being a delegation of legislative power in violation of the South Carolina Constitution; as impairing the obligation of contracts, as depriving the respondent of its property without due process of law and as denying the respondent the equal protection of the laws, in violation of the applicable provisions of both State and Federal Constitutions. While the appellant excepted to these latter holdings of unconstitutionality, none of such exceptions have been expressly argued under any appropriately stated question and we, accordingly, deem such abandoned.

Under these circumstances, His Honor's holding of unconstitutionality on grounds other than being special legislation have become, right or wrong, the law of the case, rendering it virtually moot whether or not said Act is unconstitutional as special legislation. We are satisfied, however, that he was clearly correct in holding the said Act to be special legislation in violation of Article III, Sec. 34 of the South Carolina Constitution.

Affirmed.

ORDER OF JUDGE GRIMBALL

In this action the plaintiff seeks to enjoin the defendant from operating or maintaining at cable television system in Richland County. The pliantiff relies upon Act No. 1083 of the 1972 Acts of the General Assembly, which was signed by the Governor on March 24, 1972, on which date by its terms it took effect. Section 1 of the Act amends the 1964 Act establishing the Board of Administrators (now the County Council) the Richland County and purports to confer upon it the authority to grant franchise licenses for the operation of cable television service in all areas of Richland County except the City of Columbia. The exact language of Section 1 is as follows:

'Section 1. Section 5 of Act No. 726 of 1964, as last amended by Act No. 3 of 1967, is further amended by adding new item (m) to read as follows:

"(m) The granting of franchise licenses at such fees as it may determine for the operation of cable television service in all areas of the county except the city of Columbia."

Section 2 of the Act provides:

'Section 2. It shall be unlawful in Richland County for any person to operate a cable television service for which charges are made without a franchise license. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined no less than one thousand dollars nor more than five thousand dollars or be imprisoned for not less than six months nor more than one year. Each day of unlawful operation shall constitute a separate offense.'

Plaintiff also alleges that the defendant is trespassing upon the rights-of-way of the plaintiff; that the defendant is violating the Rules and Regulations of the Federal Communications Commission; that the defendant is using the State rights-of-way without compensation to the State in violation of Article 3, Section 31 of the Constitution of South Carolina, 1895; that the defendant is using rights-of-way of public utility corporations without compensation to the land owners in violation of Article 9, Sections 19 and 20 of the Constitution of South Carolina, 1895; and that the defendant is a public utility or quasi-public utility and is violating the public utility laws and regulations of the State of South Carolina.

In its Answer, the defendant admits that it is operating a cable television system in Richland County and alleges that such operation commenced prior to March 24, 1972, the effective date of Act No. 1083. The defendant alleges that Act No. 1083 is unconstitutional and void because of conflicts between it and various parts of the Constitution of South Carolina, 1895, and the United States Constitution.

The entire matter was heard by the Court without a jury at hearings held on March 31, 1972, April 7, 1972, and April 20, 1972. Testimony was taken, numerous exhibits were received in evidence, and the matter was argued fully by counsel for both sides, orally and by brief.

The entire record has been carefully considered. At the outset, something should be said about the nature of cable television. A generation or more ago, when television was first introduced, the quality of the picture reception was a common problem. Some areas could receive not picture at all, and some areas could receive a limited number of channels of poor quality. One of the reasons for the difficulty in obtaining a good picture was the basic characteristic of television signals. Television signals, as distinguished from radio signals, travel on a straight line. That is to say, they will not bend over the horizon and can be interrupted by hills or mountains, or man-made obstacles such as tall buildings. Accordingly, the higher the transmitting and receiving antennas are placed the better the picture reception is likely to be.

In the early days of television, people found that by placing their antennas on their roofs or on top of long poles they got better reception. It was soon found that by group action a single tall antenna could be constructed from which cables or wires could be run into several homes in a neighborhood, and by this method a single antenna could bring excellent picture and sound reception to several television sets. This marked the beginning of cable television. Cable television, also known as CATV, began in 1949.

Businessmen soon entered the field of cable television, and today there are many cable television systems all over the country ranging in size from a very few subscribers to more than 40,000 subscribers. Using today's modern technology, engineers designing a cable television system use highly sensitive instruments to find a place where reception is best. An antenna of an extremely high quality is than placed in that area. Television signals from the air are received by the antenna and passed on to an electronic control center or 'head end' which filters the interference, amplifies the signals and converts the frequency to one which can be carried over the cable. Next, the main cable or 'trunk' line carries the signals to smaller feeder cables which may be serving an area the size of a city block or other area where there is a cluster of homes. Next, individual connections or 'drops' then lead from the feeder cable to the television sets being served. The main or 'trunk' cables and the feeder cables are usually attached to telephone company or power company poles.

The subscribers to cable television usually pay an installation charge or a small monthly fee which remains constant no matter how much the television set is used. For this fee, the subscriber receives clearer reception and usually a greater number of programs from which to choose.

There is nothing compulsory about cable television. Each television set owner is free to subscribe or not subscribe to cable television service. If he chooses not to subscribe he can receive the same picture and sound reception from his own television antenna as he customarily received in the past.

Cable television systems today have the potential of carrying thirty (30) or more channels. With such potential, cable television systems can 'import' distant signals that would otherwise not be available to many television viewers in a community.

Until recently, cable television was not regulated by the Federal Communications Commission (FCC). However, in 1966 the FCC issued rules and regulations governing the initiation of new CATV systems. These rules and regulations were of a limited nature and remanded in force until new rules and regulations were issued by the FCC on February 12, 1972, to take effect after March 31, 1972.

Cable television systems have existed in South Carolina for more than twenty (20) years. Except within municipalities, they have been unregulated by local authorities. There is evidence that at least fifteen (15) counties in South Carolina, and perhaps as many as twenty-one (21), have privately owned cable television systems in operation.

The principals behind Palmetto Cablevision, Inc., the defendant in this action, commenced their efforts toward the establishment of a cable television system in Richland County, and perhaps other counties, sometime age. They were advised, through their attorney, by the office of the Attorney General of South Carolina in an opinion letter dated October 31, 1969 (Defendant's Exhibit A), that counties in South Carolina have no...