Telesat Cablevision, Inc. v. City of Riviera Beach

Decision Date13 September 1991
Docket Number87-8208-CIV.,No. 87-8207-CIV,87-8207-CIV
Citation773 F. Supp. 383
PartiesTELESAT CABLEVISION, INC., Plaintiff, v. The CITY OF RIVIERA BEACH, Defendant. GWC 104, INC., Plaintiff, v. The CITY OF RIVIERA BEACH FLORIDA, Defendant/Third-Party Plaintiff, v. TELESAT CABLEVISION, INC., Third-Party Defendant.
CourtU.S. District Court — Southern District of Florida


Thomas R. Julin, Norman Davis, Adalberto Jordan, Steel Hector & Davis, Miami, Fla., for plaintiff Telesat Cablevision, Inc.

Terry S. Bienstock, James C. Cunningham, Jr., Frates Bienstock & Sheehe, Miami, Fla., for defendant City of Riviera Beach.

Christopher Redding, Daw, Lohnes & Albertson, Washington, D.C., for defendant intervenor GWC 104, Inc.


MARCUS, District Judge.

THIS CAUSE comes before the Court upon Plaintiff Telesat Cablevision Inc.'s ("Telesat") Renewed Motion for Partial Summary Judgment filed on March 19, 1990, Defendant City of Riviera Beach's ("City") Motion for Partial Summary Judgment also filed on March 19, 1990, and Defendant Intervenor GWC 104, Inc.'s (hereinafter "Comcast") Motion for Partial Summary Judgment. At issue today is a broad-based attack on the City's codified efforts to regulate cable franchises within its boundaries. Upon reviewing the pleadings and hearing extensive argument, this Court has determined that the Ordinance at issue falls within the lawful power of the municipality to regulate cable television, and that its provisions are consonant with the Constitution and statutory enactments of Congress and the State of Florida. Accordingly, Plaintiff's Motion must be DENIED, Defendant's Motion must be GRANTED, and Defendant Intervenor's Motion must be GRANTED. We reach this decision for the following reasons.

I. Factual Background

This consolidated action arises from a long-standing dispute between the parties regarding Telesat's efforts to enter the cable television business in the City of Riviera Beach. In early 1985 several condominium associations located on Singer Island within the City of Riviera Beach contacted Telesat regarding the possibility of Telesat providing cable service to its residents. Soon thereafter, Telesat entered into contracts with four condominiums located along State Road Alt. A1A to provide cable service. Initially, Telesat employed temporary satellite dishes placed on the premises of three of the four serviced buildings in order to provide service to the contracting condominiums. Service to the fourth building was provided through the use of a cable running from a satellite dish located on the property of an abutting building. At the time, Telesat did not possess a permit to run cable along public rights-of-way.

In May 1986, Telesat decided to apply to the City for a franchise to operate a cable system using public rights-of-way within the city. Although the City had not instituted formal procedures to evaluate applications for cable television franchises, two companies were operating cable franchises within Riviera Beach. The City had previously granted franchises to Teleprompter Corporation, subsequently acquired by Comcast, and Perry Cable T.V. Throughout the summer of 1986, representatives from Telesat met with city officials to try to reach agreement on terms for a franchise agreement between Telesat and the City. After four months of negotiations, the City and Telesat reached agreement on a proposed franchise contract. On September 10, 1986, the City Council reviewed the proposal, suggested changes and scheduled a vote for September 17, 1986, to approve the application. Prior to the scheduled final vote, representatives of Comcast contacted the City and requested the opportunity to make a presentation in opposition to Telesat's application for a franchise. Pursuant to this request, the City Council rescheduled consideration of Telesat's application.

On October 1, 1986, the City Council deferred action on Telesat's application pending a study of the Palm Beach County cable franchising ordinance. At that time, City staff conducting the study were instructed to report back to the City Council in ninety days. By early December 1986 Telesat was under considerable pressure from condominium owners to construct a cable system in order to eliminate the need for the use of temporary satellite dishes on condominium property. Telesat had previously obtained a permit from the Florida Department of Transportation ("DOT") to build its cable system along the Alt. A1A right of way. Despite the inaction of the City Council on its application for a franchise, Telesat obtained a building permit from the City on December 16, 1986. With its building permits from DOT and the City in hand, Telesat commenced construction of a cable system along Alt. A1A on the day it obtained its City building permit, notwithstanding that a cable franchise had not been awarded by the City.

On December 18, 1986, Comcast became aware that Telesat had started installing a cable system on Singer Island and complained to the City about it. City Manager William Wilkens proceeded to inform Telesat that it must cease construction of the cable system because it lacked a City cable franchise. In accordance with Wilken's order, Telesat immediately halted work on the system.

On December 24, 1986, Telesat notified the City of its intention to seek an injunction restraining the City from interfering with Telesat's construction of a cable system along the Alt. A1A right of way. Upon receipt of this notification, the City requested that Telesat refrain from bringing an action until the City Council had an opportunity to reconsider Telesat's application. On January 7, 1987, in accordance with the recommendation of the City Attorney, the City Council approved a resolution authorizing the City Attorney to sign an agreement with Telesat whereby Telesat would agree to abstain from bringing an action against the City in return for the City's agreement to grant Telesat a citywide cable franchise. Pursuant to the City Council's action, the City Attorney and a representative of Telesat entered into a franchise agreement on January 15, 1987. As a result of this agreement, Telesat was given the right to maintain a cable system throughout the City of Riviera Beach. On February 4, 1987, Telesat completed construction of the system on Singer Island and commenced providing cable service to residents of the Island.

Rather than ending the dispute over cable franchising in Riviera Beach, the grant of the franchise to Telesat set off a new wave of controversy. On January 30, 1987, Comcast sued the City in Palm Beach County Circuit Court, contending that the City had employed improper procedures in approving the franchise agreement with Telesat. Comcast's suit sought the following relief: (1) a declaration that the City Council failed to follow City Code requirements regarding execution of contracts; (2) an injunction enjoining the City from allowing Telesat to construct a cable system within the City; and (3) damages in excess of $5,000. At the same time, Comcast also filed a motion for a temporary injunction enjoining the effectiveness of the City's franchise agreement with Telesat.

On February 11, 1987, the state court entered a temporary injunction ordering that the City "is enjoined from proceeding under said contract unless and until it presents the Court a contract which complies with its code and is further enjoined from allowing any third party with which it has attempted to contract, from preceding under the terms of the alleged contract." Temporary Injunction Case No. CA 87-843 AI, reprinted in Plaintiff's Appendix to First Motion for Partial Summary Judgment at 428-30. On February 27, 1987, counsel for Comcast wrote to the City complaining that Telesat was continuing to provide cable service on Singer Island despite the fact that the state court had entered an order declaring Telesat's franchise invalid. Following notification from Comcast, the City sent counsel for Telesat a letter advising Telesat of the state court injunction and ordering Telesat to cease violating the injunction. Despite the letter from the City, Telesat continued operation of its cable system. On March 5, 1987, Comcast orally threatened to seek contempt proceedings due to the City's failure to take further action to compel Telesat to discontinue operation of its cable system.

On March 12, 1987, the City filed a Third Party Complaint against Telesat in Palm Beach County Circuit Court, alleging that Telesat did not have a valid cable franchise and therefore was barred from providing cable service under both the state court injunction and the Cable Communications Policy Act of 1984, Pub.L. No. 98-549, 98 Stat. 2779 (1984) ("Cable Act"). The action sought (1) a declaration that Telesat illegally operated a cable television system within the City, and (2) a temporary and permanent injunction prohibiting Telesat from continuing to operate within the City until it obtained a valid and legal franchise. Third Party Complaint filed in Case No. CA 87-843 AI, reprinted in Plaintiff's Appendix at 431-33. Telesat removed this state court action to federal court on March 23, 1987.1 On the same day that Telesat removed the state court action, Telesat filed suit in federal court seeking preliminary and permanent injunctive relief prohibiting the City from interfering with Telesat's provision of cable service within Riviera Beach.2

During the early pendency of this action, the Florida Legislature took up the matter of the regulation of cable franchises. On June 4, 1987, the Governor of Florida signed Florida Statute Section 166.046 into law. That statute establishes standards to be employed by municipalities within the state when granting cable television franchises.3

On July 1, 1989, shortly after Fla.Stat. § 166.046 became law, the City enacted Ordinance No. 2335 which established Article C...

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