On appeal from final decision of the Board of Public Utility Commissioners.
Michels, Ard and Furman. The opinion of the court was delivered by Ard, J.A.D.
[176 NJSuper Page 200] This case involves applications for a cable television franchise in the Borough of Leonia. Micro-Cable Communications Corp.
(UA-Columbia) appeals the dismissal of its application for a certificate of approval. The primary question is whether UA-Columbia is entitled to a plenary hearing concerning its violations of N.J.A.C. 14:18-11.4 and N.J.A.C. 14:18-11.8.
Pursuant to N.J.S.A. 48:5A-1 et seq. , Vision Cable Television Company (Vision) filed an application for municipal consent with the Borough of Leonia in January 1978. UA-Columbia filed an application with the same municipality in March 1978. The first hearing on the applications was held on March 29, 1978. The final hearing was scheduled for April 25, 1978. Prior to the final hearing the Leonia Cable Television Committee, created in accordance with N.J.A.C. 14:18-11.2, recommended the selection of Vision in its report to the borough.
On the day before the final hearing UA-Columbia hand-delivered a letter to the mayor and the six municipal council members. Although disputed by UA-Columbia, the letter unquestionably is a rebuttal of the Leonia Cable Television Committee's report which recommended Vision over UA-Columbia. A copy of this letter was mailed to Vision; however, it was not received until the day after the final hearing. During this hearing Vision indicated that it had not received the letter and was provided with a copy of same by a representative of UA-Columbia. Apparently unable to reach a decision on April 25, the governing body adjourned its meeting to April 28, 1978. On the latter date a resolution awarding consent to UA-Columbia was adopted by the mayor and council. A municipal consent ordinance was enacted on June 20, 1978 and accepted by UA-Columbia on June 26, 1978.
UA-Columbia then filed a petition with the Office of Cable Television, Board of Public Utilities (Board), requesting a certificate of approval based on the municipal consent awarded to it by the borough. Vision responded by petitioning the Board to deny UA-Columbia's request and also to grant certification to Vision pursuant to N.J.S.A. 48:5A-17(b), (d). This latter request was based on an allegation that the borough's action awarding consent to UA-Columbia was arbitrary.
On February 28, 1979 the hearing examiner issued his report and recommendations to the Board. The examiner found that the April 24, 1978 letter*fn1 incorporated changes, modifications, clarifications or further explanations of its initial application, all in violation of N.J.A.C. 14:18-11.4 and N.J.A.C. 14:18-11.8. He further found that recesses taken by the borough council on April 25, 1978 were in violation of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. , and that a severe departure from the franchising procedures required by N.J.S.A. 48:5A-1 et seq. had occurred. He also held that Vision's application for municipal consent had not been arbitrarily denied, nor did regionalization considerations militate in favor of an award of a certificate of approval to Vision. As a result of his findings, the hearing examiner recommended that the UA-Columbia petition for a certification of approval be dismissed with prejudice and that Vision's petition be denied.
Thereafter, UA-Columbia filed a list of exceptions to the hearing examiner's report, requesting that a factual hearing be scheduled. The request for a hearing was denied. Subsequently the Board filed its "Decision and Order." The Board held that before a petition for certificate of approval may properly be considered, the municipal consent process must be found to have been in compliance with the provisions of N.J.S.A. 48:5A-17(a) and the rules and regulations concerning the municipal consent process of the Office of Cable Television. The Board adopted the hearing examiner's findings concerning the April 24 letter and dismissed UA-Columbia's petition for certificate of approval for failure to comply with N.J.S.A. 48:5A-17(a). An application for reconsideration was denied. This appeal followed.
UA-Columbia argues that "fundamental principles of due process and the Cable Television Act require that hearings
be held in this matter and that the failure to hold same has denied UA-Columbia due process." It also argues that the April 24, 1978 letter was not a violation. We disagree. In support of its contention that a hearing is required, ...