Plaintiff, Ocean Cablevision Associates (hereinafter "OCA"), is the state-licensed cable television company for Howell Township, Monmouth County, New Jersey. Defendant and third-party plaintiff, Hovbilt, Inc., (hereinafter "Hovbilt"), is the owner and developer of a condominium project known as Surrey Downs.
OCA has been pressing for access to Surrey Downs to install cable television equipment. Following Hovbilt's denial of OCA's request for access in June 1985, OCA filed an access petition with the Board of Public Utilities, (hereinafter "BPU"), on July 15, 1985. Hovbilt answered the petition on August 15, 1985, asserting, among other defenses, that the BPU lacks jurisdiction to hear OCA's access petition.
In addition to the access petition, OCA commenced the present action wherein it seeks injunctive relief and damages at common law and under the New Jersey Antitrust Act for Hovbilt's alleged wrongful refusal to grant OCA access to Surrey Downs. The complaint in this action was filed in the Superior Court, Law Division on October 22, 1985. Hovbilt filed an answer and counterclaim, asserting that this court is the only forum in which OCA's access claim may be properly adjudicated.
OCA's access petition is presently before the Office of Administrative Law (hereinafter "OAL"), at the direction of the BPU. On December 30, 1985, OCA filed a motion for summary disposition and emergent relief permitting it to prewire Surrey Downs. Hearing on OCA's motion for summary disposition is scheduled for January 24, 1986.
On December 17, 1985, Hovbilt filed the present motion seeking an order enjoining OCA from pursuing its access claim before the BPU under the applicable statute, N.J.S.A. 48:5A-49, and the pertinent administrative code provision, N.J.A.C. 14:18-3.10.
On January 9, 1986, Hovbilt filed a third-party complaint against the BPU whereby it seeks to enjoin the BPU from acting on OCA's access petition.
The Attorney General filed an answer to the third-party complaint on behalf of the BPU on January 16, 1986; on the same date the Attorney General filed a motion to dismiss the third-party complaint for lack of subject-matter jurisdiction.
The statute at issue, N.J.S.A. 48:5A-49 (hereinafter § 49) reads in relevant portion:
a. No owner of any dwelling or his agent shall forbid or prevent any tenant of such dwelling from receiving cable television service, nor demand or accept payment in any form as a condition of permitting the installation of such service in the dwelling or portion thereof occupied by such tenant as his place of residence, nor shall discriminate in rental charges or otherwise against any such tenant receiving cable television service; provided, however, that such owner or his agent may require that the installation of cable television facilities conform to all reasonable conditions necessary to protect the safety, functioning, appearance and value of the premises and the convenience, safety and well-being of other tenants; and further provided, that a cable television company installing any such facilities for the benefit of a tenant in any dwelling shall agree to indemnify the owner thereof for any damage caused by the installation, operation or removal of such facilities and for any liability which may arise out of such installation, operation or removal.
b. For purposes of this section:
(1) "Owner" includes, but is not limited to, a condominium association and housing cooperative, and "owner of any dwelling or his agent" includes, but is not limited to, a mobile home park owner or operator.
(2) "Condominium association" means an entity, either incorporated or unincorporated, responsible for the administration of the form of real property which, under a master deed, provides for ownership by one or more owners of individual units together with an undivided interest in common elements appurtenant to each unit.
In the only heretofore published decision construing this provision, Princeton Cablevision, Inc. v. Union Valley Corp., 195 N.J. Super. 257 (Ch.Div.1983), Judge Cohen upheld the validity of § 49 against a constitutional challenge by a condominium association which sought to deny access to a local, state-licensed cable television franchise in ...