Zito Media, L.P. v. Haggerty
| Decision Date | 29 May 2018 |
| Docket Number | 4:17–cv–1676 |
| Citation | 320 F.Supp.3d 630 |
| Parties | ZITO MEDIA, L.P., Plaintiff, v. James M. HAGGERTY, Felice C. Haggerty, Joseph Haggerty, and Michele Haggerty, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Christopher W. Cahillane, Tucker Arensberg, P.C., Pittsburgh, PA, Kevin L. Hall, Tucker Arensberg, PC, Lemoyne, PA, for Plaintiff.
David J. Brann, Brann, Williams, Caldwell and Sheetz, Troy, PA, for Defendants.
Presently pending before the Court are cross Motions for Summary Judgment. (Docs. 14 & 17). For the reasons that follow, we shall deny Plaintiff's Motion, (Doc. 14), and grant Defendants' Motion, (Doc. 17).
47 U.S.C. § 521. At issue before us is § 541(a)(2) of the Cable Act, which provides that "[a]ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses...." 47 U.S.C. § 541(a)(2). In this case, all material facts being undisputed, Plaintiff, Zito Media, L.P. ("Zito"), seeks to install fiber optic cables on an electric line easement on a parcel of undeveloped property owned by Defendants, James M. Haggerty, Felice C. Haggerty, Joseph Haggerty, and Michele Haggery ("the Haggertys").
On July 19, 2017, Zito Media Communications, LLC, a sister company of Zito, was granted a cable franchise by Wysox Township, in Bradford County, Pennsylvania. (Id. at ¶ 4). Zito Media Communications, LLC, assigned the franchise agreement to Zito on August 1, 2017. (Id. at ¶ 6). Zito holds itself out as a provider of high-speed broadband and internet, digital cable television, and digital voice communications services for customers in a number of states, including Pennsylvania. (Doc. 18, ¶ 9).
The Haggertys, as noted, own an undeveloped parcel of property in Wysox Township, which was conveyed to them on January 18, 2000. (Doc. 16, ¶ 8). The Haggertys' property is traversed by an electric utility easement containing a number of utility poles, electric transmission wires, and other facilities which are owned by Pennsylvania Electric Company ("Penelec"), a subsidiary of FirstEnergy Corporation. (Id. at ¶ 10). The easement was originally granted by the Haggertys' predecessors in title in 1944 to a predecessor entity of Penelec known as Northern Pennsylvania Power Company ("NPPC"). (Id. at ¶ 11). The easement granted NPPC, and its successors and assigns, the right to "construct, maintain, and operate an electric line consisting of H frames, conductors, overhead and underground lightning protective wires, private communications wires, guys, push braces, and other necessary apparatus and equipment...." (Id. at ¶ 13). The easement further granted NPPC and its successors and assigns the right "to install on said line such additional apparatus and equipment as Grantee may deem necessary...." (Id. at ¶ 14).
Sometime in March 2017, representatives of Zito sought to utilize the easement and to affix its fiber optic cables to Penelec's poles within the easement and subsequently executed an agreement with Penelec obtaining permission to do so. (Id. at ¶ 15; Doc. 18, ¶ 12). The Haggertys have refused to permit Zito access to the easement and have expressly informed Zito that it may not affix its fiber optic cables to the Penelec poles in the easement. (Doc. 16, ¶ 16).
Zito initiated this action by filing a Complaint on September 18, 2017, seeking declaratory and injunctive relief. (Doc. 1). In its Complaint, Zito alleges that the Haggertys' exclusion of Zito violates Section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 541(a)(2) ("Cable Act"). The Haggertys filed their Answer on October 2, 2017. (Doc. 8). On March 29, 2018, Zito filed the instant Motion for Summary Judgment, (Doc. 14), along with its supporting brief, (Doc. 15), and statement of facts, (Doc. 16). On April 2, 2018, the Haggertys filed their Motion for Summary Judgment, (Doc. 17), statement of facts, (Doc. 18), and supporting brief, (Doc. 19). Both sides filed opposing briefs, (Docs. 20, 24), and Zito filed a timely reply brief, (Doc. 25). The time for the Haggertys to file a reply brief has passed and, thus, we consider the motions ripe for review.
Summary judgment is appropriate if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is "material" only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ's Wholesale Club, Inc. , 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C. , 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).
Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1).
A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a fact finder could draw from them. See Reedy v. Evanson , 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council , 676 F.2d 81, 84 (3d Cir. 1982) ). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Layshock ex rel. Layshock v. Hermitage Sch. Dist. , 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 ) (internal quotation marks omitted).
With the aforesaid factual backdrop established, we are tasked with how to interpret § 541(a)(2) of the Cable Act as it applies to this scenario. As stated earlier, § 541(a)(2) provides, in part, that "any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which has been dedicated for compatible uses...." 47 U.S.C. § 541(a)(2). Zito concedes there is no public right-of-way here. Rather, Zito argues that the easement previously granted to NPPC has been "dedicated for compatible uses" and, therefore, Zito is authorized under the Cable Act to install its fiber optic cables on the preexisting poles. The Haggertys argue that the easement has not been dedicated as such and, further, that the Cable Act does not confer a private right of action upon Zito. The Haggertys also suggest, in their Answer, that Zito's access to the easement would constitute an unconstitutional taking.
Unfortunately, Congress has not provided a definition of the phrase "dedicated for compatible uses" and this omission has generated significant confusion and disagreement among the district and circuit courts. Of primary confusion among the courts is whether to interpret "dedicated" as a legal term of art or according to its ordinary and common meaning. As a term of art, "dedicated" in the context of property law indicates that the property "was set apart ...to some public use; as to make a private way public by acts evincing an intention to do so." RCN Telecom Services, Inc. v. DeLuca Enterprises, Inc. , 413 F.Supp.2d 464, 469–70 (E.D.Pa. 2005) (quoting Black's Law Dictionary 371 (1979) ). If construed according to its ordinary meaning, however, "dedicated" permits a much broader reading, suggesting that the Cable Act applies equally to private easements, "so long as they have been set aside for compatible uses." Id.
To date, four circuit courts have specifically addressed the proper construction of the term, and each of the...
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