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August 29, 1985

THE BOARD OF PUBLIC UTILITIES and OFFICE OF CABLE TELEVISION, an agency of the State of New Jersey and a division thereof, NYT CABLE TV, a division of The New York Times Company, and THE STATE OF NEW JERSEY and IRWIN I. KIMMELMAN, Attorney General of New Jersey, Defendants, and NEW JERSEY CABLE TELEVISION ASSOCIATION, Defendant-Intervenor

The opinion of the court was delivered by: BROTMAN

 The plaintiffs in this action are a "satellite master antenna" television ("SMATV") company, two real estate developers ("the Developers"), and four condominium homeowners associations ("the Homeowners Associations"). Direct Satellite Communications, Inc. ("DirectSat"), the SMATV firm, has entered into exclusive agreements with the Homeowners Associations to install cable television systems in four planned residential communities ("the Developments") constructed by the Developers in Camden County, New Jersey.

 The principal defendant in this litigation is New York Times Cable Television ("NYTCA"), a franchised cable television company which operates primarily in Southern New Jersey. NYTCA has sought and failed to gain entry into the four Developments, and thus has been unable to offer its services to homeowners there. Consequently, NYTCA has filed a series of administrative complaints as well as a civil lawsuit at the state level. In these actions the company challenges the validity of DirectSat's contracts with the Homeowners Associations. NYTCA's actions are based on N.J.S.A. 48:5A-49 ("Section 49"), the "Mandatory Access Law." Section 49 guarantees cable television companies access to multi-unit dwellings and condominium developments in order to solicit customers for their services. Plaintiffs also name as defendants the State of New Jersey, the New Jersey Attorney General, Irwin I. Kimmelman, the New Jersey Board of Public Utilities ("BPU"), and the BPU Office of Cable Television. These defendants are being asked to enforce Section 49 against many of the plaintiffs in the state proceedings initiated by NYTCA.

 The Complaint, as amended, asserts that Section 49 is unconstitutional on two separate grounds. First, plaintiffs contend that Section 49 is contrary to the equal protection clause of the Fourteenth Amendment to the United States Constitution. The statute allegedly creates rights of access for franchised cable television companies like NYTCA, while denying the same rights to unfranchised companies such as DirectSat. Second, plaintiffs maintain that Section 49 violates the First, Fifth and Fourteenth Amendments because it forces individuals and communities to allow certain favored cable television companies to gain access to their private property, regardless of whether the owners desire such access, or approve of the message conveyed. Both of plaintiffs' claims are founded on 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 1201 et seq. The court's jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343.

 Presently before the court is plaintiffs' application for a preliminary injunction against enforcement of Section 49 and a declaration that the statute is unconstitutional. In the alternative, plaintiffs request summary judgment on both claims raised in the Complaint, as amended. Fed. R. Civ. P. 56. Defendant NYTCA has filed a cross-motion to dismiss the Complaint, and the State defendants have submitted a cross-motion for summary judgment. According to NYTCA and the State defendants, plaintiffs lack standing to maintain this action and are unable to substantiate their constitutional claims. In the alternative, the defendants ask the court to dismiss the Complaint, or at least to stay further proceedings, pursuant to the doctrine of abstention. On April 4, 1985, the court granted a motion brought by the New Jersey Cable Television Association ("the Association") to intervene as a party defendant. The Association joins in the cross-motions submitted by the other defendants.

 For reasons set forth below, the court will not abstain from exercising its jurisdiction over the issues presented by the parties. The court will grant defendants' motion to dismiss for lack of standing as to plaintiffs' first cause of action. In addition, the court will award defendants summary judgment with respect to plaintiffs' First Amendment claim. Accordingly, plaintiffs' motion for a preliminary injunction or summary judgment will be denied, and the Complaint will be dismissed.

 Factual Background

 The parties acknowledge that they concur as to the facts underlying this case, except for a minor disagreement regarding the degree of similarity between the services offered by DirectSat and NYTCA. Accordingly, there exist no genuine issues of material fact in this case, and the following is undisputed.

 A. The Developments

 This litigation arises out of a battle over rights to provide television service to four newly developed suburban communities in Camden County. *fn1" Each community has a homeowners association which administers community facilities and collects revenues from each homeowner to finance such activities.

 The principal Developer of each of these settlements, John B. Canuso, *fn2" "considered it vital . . . that they have a form of technologically up-to-date cable television service" at the time the new owners moved into the units or as soon as possible thereafter. Affidavit of John B. Canuso ("Canuso Affidavit") at 2-3. Mr. Canuso selected DirectSat because he believed its services to be "at least equal" to those of NYTCA, the franchised purveyor in the area, and because DirectSat could install facilities sooner. Id. at 3. The Homeowners Association for each of the Developments concurred in his judgment and entered into contracts with DirectSat. *fn3" Id. at 4, 6.

 B. The Providers

 NYTCA serves all of its customers from central reception and transmission facilities. Individual homes and apartments gain access to NYTCA programming through a network of underground coaxial cables buried in public rights-of-way in Southern New Jersey. NYTCA receives television signals transmitted by satellite and traditional means and then relays these broadcasts to persons in a variety of communities willing to pay the company to connect their homes to nearby arteries in the NYTCA cable network.

 DirectSat and NYTCA select material for transmission to customers. Both companies provide at least twenty channels of programming including local broadcasts, distant satellite broadcasts and various specialty channels which show movies, sports, news and other material. In addition, customers of DirectSat have access to several non-television "interactive" channels, through which they can arrange for home security services, fire and smoke alarm systems and the like.

 C. The Contracts

 The three television service contracts at issue are substantially similar. In numerous respects, they are virtually identical. In each of the communities involved in this litigation, DirectSat has obtained permission to install and maintain a satellite cable television system on community property under the control of the community's Homeowners Association. The agreements also grant to DirectSat "exclusive" rights to use the system to transmit pay television and other services, as well as "to solicit and obtain compensation from the individual residents [of the communities] for the services for which they subscribe." The Homeowners Associations agree to pay DirectSat a monthly service fee equal to the "base service cost times the number of units" using DirectSat services. If any homeowner fails to remit his or her common maintenance charges to the condominium association, the association may request DirectSat to terminate service to that homeowner. DirectSat agrees to provide the four communities with "competitive" service over the life (ten or fifteen years) of the ...

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