Southeast Florida Cable, Inc. v. Martin County, Fla., 98-4516

• Decision Date: 27 April 1999
• Docket Number: No. 98-4516,98-4516
• Citation: 173 F.3d 1332
• Parties: 12 Fla. L. Weekly Fed. C 756 SOUTHEAST FLORIDA CABLE, INC., a Florida Corporation, d.b.a. Adelphia Cable Communications, Plaintiff-Appellant, v. MARTIN COUNTY, FLORIDA, a political subdivision of the State of Florida, Marshal L. Wilcox, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1332

173 F.3d 1332

12 Fla. L. Weekly Fed. C 756

SOUTHEAST FLORIDA CABLE, INC., a Florida Corporation, d.b.a Adelphia Cable Communications, Plaintiff-Appellant, v. MARTIN COUNTY, FLORIDA, a political subdivision of the State of Florida, Marshal L. Wilcox, et al., Defendants-Appellees.

No. 98-4516.

United States Court of Appeals, Eleventh Circuit.

April 27, 1999.

Thomas G. Rohback, Hartford, CT, Edward Cottrell, Michael L. Duncan, Jacksonville, FL, for Plaintiff-Appellant.

B. Douglas MacGibbon, William P. Doney, West Palm Beach, FL, Gary Oldenhoff, Asst. County Atty., Stuart, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.

BARKETT, Circuit Judge:

Southeast Florida Cable, Inc., d/b/a Adelphia Cable Communications ("Adelphia"), appeals the dismissal of its complaint against Comcast Cablevision of West Palm Beach, Inc. ("Comcast"), Martin County, Florida and the Martin County Board of County Commissioners ("Martin County"). In its complaint, Adelphia alleged that Martin County gave favorable treatment to Adelphia's competitor, Comcast, in violation of the Due Process and Equal Protection Clauses, and failed to act on its license renewal request in violation of the Federal Cable Act, 47 U.S.C. § 521 et seq. The district court dismissed Adelphia's constitutional claims based on res judicata and found that the Cable Act claim was not ripe for judicial review. We reverse on both counts.

I. Background

Martin County, a franchising authority, has granted both Adelphia and Comcast franchises to operate cable systems. See 47 U.S.C. § 522 (defining "franchise authority," "cable system," and "cable operator"); Martin County Ordinance No. 352 (1988) ("County Cable Ordinance"). Adelphia's franchise originated with its predecessor in interest in 1974. Comcast's franchise began in May 1994 when Martin County gave Comcast the right to service the single housing association known as Summerfield, a limited area within the County.

Shortly after Comcast obtained the Summerfield service area, Adelphia filed suit ("the prior lawsuit") in federal district court against Martin County alleging that the awarding of a franchise for a limited service area violated the Equal Protection Clause and Florida statutory law. Adelphia's claim was based on what it calls the "universal service" requirement in the County Cable Ordinance, which provides that a cable operator must be able to serve ninety percent of its service area or provide a plan for doing so within a two-year period. Specifically, the ordinance provides that in order to obtain a franchise license, a cable operator must "meet the approved timetable by providing service to the specified area with a capability of serving a minimum of ninety (90%) percent of the potential unserved subscribers meeting the density standards in the area." County Cable Ordinance § 5.3(B).

In that prior lawsuit, Adelphia argued that by permitting Comcast to serve only an affluent area, Comcast avoided the obligation placed upon Adelphia of having to lay cable throughout the entire county in order to comply with the ninety percent rule and thereby avoided serving the low-income areas which are often more costly to operate. This, Adelphia claimed, violated its rights under both the Equal Protection Clause and Fla. Stat. § 166 (1987) ("Florida Level Playing Field Statute"), under which a franchising authority cannot grant terms more favorable to one franchise than another. ¹

The district court found that both Adelphia and Comcast had an obligation to maintain the capability of providing service to ninety percent of the service area's residents, albeit in different-sized areas. It therefore ruled that Martin County had not discriminated between franchise licenses and had not deprived Adelphia of any constitutional protection. Adelphia did not appeal.

Two years later, Martin County granted Comcast a service area geographically equivalent to Adelphia's--that is, county-wide--without requiring that Comcast provide service to ninety percent of the area's residents. Also at that time, Adelphia sought to renew its existing franchise and Martin County declined to act on Adelphia's license renewal request saying that Adelphia had failed to file a proper formal application.

Adelphia then filed this action asserting that Martin County's grant to Comcast of a service area equivalent to Adelphia's, without requiring Comcast to comply with the ninety percent proportionate service obligation that Adelphia had been required to meet, violated both the Florida Level Playing Field Statute and an analogous section of the County Cable Ordinance, ² as well as the Due Process and Equal Protection Clauses. Adelphia sought declaratory and injunctive relief voiding the extension of a county-wide license to Comcast. In a separate count, against both Martin County and Comcast, Adelphia claimed an additional cause of action, based on 47 U.S.C. § 541 of the Cable Act ³ through which Congress intended to eliminate the denial of cable service on the basis of income status. ⁴ Pursuant to this claim, Adelphia asserted that Martin County permitted Comcast to serve only select upper-income, high-revenue, low-cost residential communities and to deny service to lower income, high-cost areas of Martin County. Finally, Adelphia alleged that Martin County was in violation of the Cable Act by refusing to act regarding the renewal of its existing franchise, and requested that the court enter an order mandating that Martin County comply with the Cable Act.

The district court dismissed Adelphia's constitutional claims as well as its claim under § 541 of the Cable Act regarding Comcast's compliance with the ninety percent proportionate service obligation, finding the claims barred under the doctrine of res judicata, because this suit presented "identical legal theories premised upon identical facts set forth in the prior action." The district court also dismissed Adelphia's claim that Martin County had failed to act on its letter requesting renewal proceedings on the ground that the claim was not ripe for adjudication because the complaint "fails to allege that a formal application which met all of the County's requirements was submitted and wrongfully delayed or denied by the County." Adelphia appeals from both of these rulings and we address each in turn. ⁵

II. Discussion

A. Res judicata

In order to prevail on a claim of res judicata, the party asserting the bar must prove that (1) there was a prior judgment on the merits, (2) entered by a court of competent jurisdiction, (3) with substantial identity of the parties, (4) involving the same cause of action. NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990). The only issue before us is the fourth factor: whether the cause of action in this case is the same as that in the prior lawsuit. We conclude that it is not.

In determining whether to apply res judicata, we " 'must look to the factual issues to be resolved [in the second cause of action], and compare them with the issues explored in' the first cause of action." Manning v. City of Auburn, 953 F.2d 1355, 1359 (11th Cir.1992) (quoting S.E.L. Maduro v. M/V Antonio De Gastaneta, 833 F.2d 1477, 1482 (11th Cir.1987) (brackets in original)). If there has been " 'a[ ]...modification of significant facts creating new legal conditions, res judicata is no defense.' " Id. (quoting Jaffree v. Wallace, 837 F.2d 1461, 1469 (11th Cir.1988) (brackets in original)).

In the prior lawsuit, the district court held that Martin County's grant to Comcast of a franchise with a service area limited to one small community did not violate either the Equal Protection Clause or the Florida Level Playing Field Statute because the obligation to maintain the capability of providing service to ninety percent of the residents existed for both Adelphia and Comcast, albeit in different-sized areas. The district court found that "[w]hile Comcast's obligations to provide service are presently limited to the Summerfield development, the obligations imposed are proportionate with the obligations imposed upon Adelphia, i.e., each cable company has the obligation to serve ninety percent of its service area." In other words, the court found that Martin County did not violate Adelphia's rights because Martin County imposed on Comcast the same obligations it imposed on Adelphia in proportion to the size of the service area each had selected. ⁶

At the time of the prior lawsuit, Comcast's service area was limited to Summerfield. However, Comcast now has a county-wide service area. Therefore, the factual premise of the present lawsuit differs significantly from the prior one. Consequently, because Martin County now has given county-wide service areas to both Adelphia and Comcast, but requires only Adelphia to service ninety percent of the entire community, we cannot agree with the district court that the legal claims in the two suits arise from the same "operative nucleus of fact." See Olmstead v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir.1984); RESTATEMENT (SECOND) OF JUDGMENTS § 24 cmt.f (1980) ("Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first."); see also Lawlor v. National Screen Service Corp., 349 U.S. 322, 327-28, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) (prior dismissal of antitrust complaint did not bar new antitrust complaint based on conduct occurring after the first judgment); Wu v. Thomas, 863 F.2d 1543, 1548-49 (11th Cir.1989) (prior discrimination action did not bar current action for retaliation). Extension of Comcast's service area to the entire county is a new fact which presents a new...