On appeal from the Board of Public Utility Commissioners.
Matthews, Crane and Antell. The opinion of the court was delivered by Antell, J.A.D.
These appeals involve competing applications under the Cable Television Act, N.J.S.A. 48:5A-1 et seq., for certificates of approval to operate cable television systems in the beach areas of Dover Township and Berkeley Township in Ocean County. In Clear Television Cable Corporation [hereinafter "Clear"] v. Board of Public Utility Commissioners [hereinafter "Board"] Clear appeals from the denial of its application and the issuance of a certificate to National Video Systems, Inc. [hereinafter "National"]. In National Video Systems, Inc. v. Board of Public Utility Commissioners, National appeals from an earlier refusal of the Board to entertain its application under § 17(d)*fn1 of the act for a certificate of approval without municipal consents. This appeal presents a record of sprawling complexity and necessitates a detailed statement of the relevant legal and factual setting.
Under the Cable Television Act the privilege of operating a cable television (CATV) system is conditioned upon obtaining a certificate of approval from the Board. Where the applicant proposes to operate in a municipality where facilities are to be installed along public areas the certificate of approval cannot be granted without a municipal consent
being first issued by the municipal governing body. §§ 16(a) and 22. Upon submission of an application for municipal consent the governing body is obliged to publish notice of hearing thereon to be held within 60 to 90 days after filing of the application. § 23(b) and (c). Within 30 days after conclusion of the hearings the governing body is required to issue a written report of its decision to grant or deny the application. § 23.
An exception from the requirement of a municipal consent is provided for where the municipality "shall arbitrarily refuse to grant the municipal consent * * * or to act upon an application for such municipal consent within 90 days after such application is filed." § 17(d). Where such a showing is made "to the satisfaction of the board" the certificate may be issued without municipal consent.
The Board is also authorized, without municipal consent but on notice to the affected municipalities, to include within the certified area neighboring areas not covered in the application where it finds that the probable effect otherwise would be to impede the development of adequate cable television service either within or without the area for which certification is sought. § 17(b). We refer to this provision as the "regionalization" exception even though the term itself nowhere appears within the statutory language.
Since the action of the Board in awarding its certificate to National was based on regional considerations, the distinction between the beach areas and the mainland portions of the municipalities involved must be understood. The former are situated on the Island Beach Peninsula which, lying parallel to the mainland, is separated from the latter by Barnegat Bay. Also located on the Peninsula are the municipalities of Lavallette, Seaside Heights and Seaside Park. National was municipally enfranchised by ordinance to operate its system in these three localities between March and June 1971, a privilege which was "grandfathered" under §
17(f) of the act, which became effective December 15, 1972.*fn2
The beach areas of Dover adjoin Lavallette on the north and south. The southern beach area of Dover, known as Ortley Beach, also adjoins Seaside Heights on the north. Seaside Park adjoins Seaside Heights on the south, and the beach area of Berkeley, known as South Seaside Park, adjoins Seaside Park at the southern extremity of these contiguous areas. It can be seen that National is already providing service in localities immediately adjacent to those for which certification is now sought.
Clear obtained its municipal consent from Berkeley Township in the form of an enfranchising ordinance on April 24, 1970, prior to the enactment of the Cable Television Act. Pursuant to the "grandfather" provision of the act, § 17(f), the Board, under Docket #735C-5007, issued its certificate of approval on November 1, 1973 for Clear to continue operating its system in the Berkeley areas then being serviced, and on May 29, 1974 the scope of approval was enlarged to include the entire township except for the beach areas thereof. The exclusion of the beach area was at the request of National, whose application to the Board for a certificate covering the beach areas of Dover and Berkeley Townships was, as we will shortly explain, made on April 25, 1974.
Clear obtained its municipal consent from Dover Township somewhat differently. On September 7, 1973 Crosswicks Industries filed its application with Dover Township for a municipal consent to operate a CATV system under § 22 of the act. Notice thereof was given, and within the statutory ...