On appeal from final decision of the Board of Public Utilities.
Michels, Petrella and Baime.
[199 NJSuper Page 10] Clover Cable Systems, Inc. appeals from an order of the Board of Public Utilities, Office of Cable Television (Board), dismissing its petition for a certificate of approval to construct, operate and maintain a cable television system in Upper Deerfield Township, Cumberland County, New Jersey. The basis for the appeal is Clover's contention that the Board was required
to conduct a plenary hearing before ruling on its application because there were disputed questions of fact.
Clover holds certificates of approval to operate in three Cumberland County municipalities, i.e., Commercial, Downe and Maurice River Townships. In July 1982 it filed for municipal consent to operate in Upper Deerfield Township which is not contiguous to the municipalities for which it already has approvals. Two other companies also filed applications with that township. Hearings were held by the township and it then gave its consent to Group W Cable, Inc. (Group W), one of appellant's competitors. Shortly thereafter, Group W sold its television systems to respondent Cablentertainment of New Jersey-V (Cablentertainment) which had joined in the consent application with Group W.*fn1
Cablentertainment then filed a petition with the Board seeking a certificate of approval to operate in Upper Deerfield.*fn2 Clover also filed a petition with the Board for certificates of approval to operate in Upper Deerfield and in three other townships in Cumberland County, i.e., Deerfield, Fairfield and Lawrence Townships as part of its "proposed regional system" of "six townships." Deerfield and Fairfield are contiguous to Upper Deerfield while Lawrence Township is not. Clover did not, however, have consents from any of these municipalities. Clover's application to operate in Upper Deerfield was not referred to the Office of Administrative Law as a contested case, but the disputed applications to operate in the other three townships were. The Board reviewed the record, made findings and dismissed Clover's regionalization petition involving Upper Deerfield. On the same day the Board issued a certificate of approval to Cablentertainment for construction and
operation of a cable television system in Upper Deerfield Township. Clover filed an appeal with this court to challenge the Board's dismissal of its petition. We denied its application for a stay of construction of cable television facilities in Upper Deerfield in a June 21, 1984 order in which we provided that Cablentertainment "shall proceed with the construction and installation of the television system in the Township of Upper Deerfield at its own risk and peril." We thereafter also denied summary disposition. See R. 2:8-3(b).
Clover argues that because there were disputed fact questions the Board erred in refusing to grant a hearing. Clover's petition for its "proposed regional system" set forth the following grounds for approval of certification on a regionalization basis: (1) it already held certificates of approval for three Cumberland County townships (Commercial, Downe and Maurice River Townships -- none of which are contiguous to Upper Deerfield); (2) it had completed construction in one of those townships, and expected completion in the other two by October 30, 1983 and January 1984; (3) the award of certificates in "Lawrence, Fairfield, Deerfield and Upper Deerfield to Clover Cable Systems, Inc. would form a contiguous and cohesive regional network connecting all of the rural communities of Cumberland County" (emphasis supplied); (4) the award would tie together the high schools in the region and "its local origination programming would also provide a vehicle for exchange of ideas and programs among county residents with common interests;" (5) these four townships "would serve as the logical completion of Clover's regional system," and (6) "one cable television company would be both financially and technically in a better position to provide adequate cable television service for residents of the area."
Cablentertainment moved to dismiss Clover's Upper Deerfield petition on the ground that Clover failed to establish a prima facie case for a "regionalization" petition, and alternatively sought dismissal on the ground of laches because Clover's petition was not filed until seven months after Cablentertainment's
petition was filed and more than a year after the initial resolution of denial by the Upper Deerfield Township governing body. Upper Deerfield Township also opposed Clover's application. Clover filed an answer to Cablentertainment's motion to dismiss taking the position that its petition established a prima facie case of regionalization.*fn3
The Board did not conduct a hearing on Clover's petition, but dismissed it by order dated March 6, 1984. The Board found that Clover's claim for a certificate of approval on grounds of regionalization was weak, insufficient, self-promoting and contained no solid factual framework. The Board stated that it had considered Clover's petition "in light of six factual issues it applies to petitions based on regionalization." The Board found that the award of the certificate to Cablentertainment would not deter development of adequate cable television service and would not cause an unreasonable duplication of services in the area. See N.J.S.A. 48:5A-17b. It also pointed out that Clover did not even have a franchise in a municipality contiguous to Upper Deerfield*fn4 and that Upper Deerfield strongly objected to the ...