On certification to the Superior Court, Appellate Division, whose opinion is reported at 214 N.J. Super. 148 (1986) (A-42). On certification to the Superior Court, Appellate Division (A-43/44).
For affirmance -- Justices Handler, O'Hern and Garibaldi. For reversal -- Chief Justice Wilentz, and Justices Clifford and Stein. Handler, J., concurring. Stein, J., dissenting. Handler, O'Hern and Garibaldi, JJ., concurring in the result.
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.
In this case we are asked to examine whether the statutory scheme found in the Cable Television Act (the "Act"), N.J.S.A. 48:5A-1 to -53, and more specifically its access rights section, N.J.S.A. 48:5A-49 ("Section 49"), is constitutional. There can be no quarrel with the proposition that, under the Act, entry on any property and the installation of cable television constitutes the taking of property for which just compensation must be paid as a matter of constitutional due process. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982). Within this constitutional framework
we must resolve two issues: (1) whether Section 49 as enacted can reasonably be construed to require the payment of just compensation; and (2) if not, whether the Legislature would have wanted Section 49 to be so construed in order to preserve the constitutionality -- and the survival -- of the overall statutory scheme of the Act.
The dissenting opinion, taking the position that both of these issues must be resolved against the constitutionality and survival of the regulatory scheme, presents in detail the procedural posture and relevant facts of this appeal. Post at 36-44. I readily incorporate this presentation as a basis for explaining separately why I conclude that the statutory scheme, regardless of its wisdom or efficacy, is constitutional. It is, I submit, entitled to be upheld by the Court, which should leave the Legislature free to deal with the subject as it sees fit.
I believe that Section 49 is susceptible of an interpretation that would, as a matter of imputed legislative interest, require the payment of just compensation for the entry on property for purposes of installing cable television. Section 49 can be viewed as having distinctive segments, each governing different aspects of the relationship between the several parties involved in the installation of cable television. So viewed, the statute can be read to permit -- not to bar -- the payment of compensation to the owner of property for the rights of access.
The initial part of Section 49 can be understood as primarily governing the relationship between owner and tenant. It provides that
[n]o 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 . . .
[N.J.S.A. 48:5A-49 (emphasis added).]
This clearly focuses on owners' treatment of their tenants, prohibiting them from demanding any payment from these tenants for installation of cable television. See Princeton Cablevision, Inc. v. Union Valley Corp., 195 N.J. Super. 257, 270 (1983).
The second part of Section 49 deals essentially with the nature or consequences of installation, permitting owners to require that the cable service not be installed in a damaging manner. It provides
that such owner or his agent may require that the installation of cable television facilities conforms 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 . . .
In its final aspect, Section 49, quite apart from its basic prohibition against demanding payment from tenants, provides that owners can demand that cable companies pay them for any damages done to their property as a result of faulty installation. The Section thus states
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. [ Ibid. ]
I do not suggest that it is linguistically impossible to read Section 49, as does the dissent, namely, that the statute plainly, flatly, absolutely bars the payment of just compensation to an owner by a cable television company for rights of access and installation. Nevertheless, it is plausible to understand Section 49 as not expressly or impliedly prescribing such a prohibition.*fn1 The language does present alternative interpretations.
N.J.S.A. 48:5A-49 is not neutral to the subject of damages; it can, however, be viewed as being neutral toward the issue of compensation. Its express language can be said neither to prohibit nor to require the payment of just compensation. The failure explicitly to require the payment of just compensation, however, does not mandate the conclusion that the statute bars the payment of such compensation, rendering the statute unconstitutional. Whether a statute must be so read and thus deemed unconstitutional turns on the intent of the Legislature.
One of the basic guidelines in analyzing the constitutionality of a statute is "the presumption that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner." State v. Profaci, 56 N.J. 346, 349 (1970); see Alling St. Urban Renewal Co. v. City of Newark, 204 N.J. Super. 185, 191 (App.Div.1985), certif. den., 103 N.J. 472 (1986). The articulation of all of the essential elements demonstrating such legislative intent need not appear in the statutory language itself. See Profaci, supra, 56 N.J. at 349; Lomarch Corp. v. Mayor of Englewood, 51 N.J. 108, 113 (1968); Juzek v. Hackensack Water Co., 48 N.J. 302, 315 (1966).
This Court has found that statutory schemes involving takings can be said implicitly to authorize the payment of just compensation despite the absence of any language to this effect. Thus, in Lomarch, supra, the Court noted that a statute
often speaks as plainly by inference as by express words. The details for the accomplishment of a statutory objective do not have to be specifically spelled out with particularity. It is not always essential in order to avoid unconstitutionality, that provisions to insure compliance with the Federal or State constitution
be spelled out in detail. Whenever the legislature authorizes . . . action which, if taken, would require, under the constitution, that just compensation be paid, it follows that if . . . [the authorized party] wishes to exercise that power it must comply with the constitutional mandate and pay. The statute is not constitutionally defective for failure to expressly provide for compensation.
[51 N.J. at 113 (citation omitted).]
The statutory silence of Section 49 concerning just compensation is similar to that dealt with in Lomarch. A comparable understanding, viewing the Act as implicitly authorizing the payment of just compensation to owners, is readily available.
The scheme of Section 49 can be distinguished from situations where a statute flatly and irreversibly bars compensation. For example, in Storer Cable T.V. of Florida, Inc. v. Summerwinds Apartments. Assocs. Ltd., 493 So. 2d 417 (Fl.1986), the Florida Supreme Court dealt with a statute that explicitly declared "nor shall [a] . . . cable television service be required to pay anything of value in order to . . . provide such service. . . ." Fla.Stat. § 83.66(1) (held unconstitutional). The lack of any room to maneuver with this language thus precluded any saving interpretation. Cf. New Jersey Board of Higher Education v. Shelton College, 90 N.J. 470, 478 (1982) (court can devise saving interpretation only if statute is 'reasonably susceptible' of such construction."). As noted, the statutory scheme and language of the Act do not plainly provide such an absolute prohibition against the payment of just compensation to owners for the taking of property involved in the installation of cable television service.
Because the constitutionality of a statute is at stake, our judicial mission would not be ended even if the statutory language did not allow the implication of authority to pay just compensation under the Act. The Court in this situation is importuned to consider whether a constitutional cure, imputing or adding such authority to Section 49, can be effected through the use of "judicial surgery." As we noted in Right to Choose v. Byrne, 91 N.J. 287, 311 (1982), "[i]t is our duty to save a statute if it is reasonably susceptible to a constitutional interpretation." See Shelton College, supra, 90 N.J. at 478. In
necessitous circumstances when the constitutionality of a statute is threatened, we have excised constitutional defects or engrafted new meanings to assure its survival. See, e.g., Town Tobacconist v. Kimmelman, 94 N.J. 85, 104 (1983); New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 75 (1980). This is done, however, only where it is determined that the Legislature would have wanted the statute to survive as modified rather than to succumb to constitutional infirmities. Jordan v. Horsemen's Benevolent and Protective Ass'n, 90 N.J. 422, 431-32, 435 (1982). Stated otherwise, before using "judicial surgery" a court always "must ascertain whether the Legislature would have declined to adopt the statute or would have adopted it with the constitutional interpretation." Byrne, supra, 91 N.J. at 311 (citing United States Chamber of Commerce v. State, 89 N.J. 131, 152 (1982)).
I agree with the view expressed by the court below, NYT Cable TV v. Homestead at Mansfield, Inc., 214 N.J. Super. 148, 160 (App.Div.1986), as well as the prior Appellate Division holding in Princeton Cablevision, supra, 195 N.J. Super. 257. A review of the development of the cable industry and legislative response to it indicate that the Legislature would be satisfied to continue this statutory scheme, even though it may, in the opinion of some, need modification, adjustment, or, indeed, replacement. Put somewhat differently, whatever may be awry with the regulatory scheme, extrinsic considerations suggest that the Legislature has not abandoned the statute and is not indifferent to its survival.
In 1972, cable television systems brought in distant and local over-the-air signals via a community antenna and coupled that over-the-air programming with locally produced programming that began to include uninterrupted movies in the late 1960's and early 70's. See H.Rep. No. 934, 98th Cong., 2d Sess. 20-21, reprinted in 1984 U.S. Code Cong. & Admin. News 4655, 4658. At that time, there was no satellite programming system that would deliver uninterrupted movies, sports, and entertainment
programming to any cable system, and only 12-15% of the population received cable television. Ibid. It was not until 1975 that a division of Time-Life Inc., the Home Box Office (HBO), began to deliver such satellite programming. Ibid. This development changed the cable industry, spurring its tremendous growth.
At the same time in 1972, Master Antenna Television (MATV) systems were available to provide television service to larger multi-unit buildings and developments. 2 C. Ferris, F. Floyd & T. Casey, Cable Television Law: A Video Communications Practice Guide § 21.01 (1987). These MATV systems, like the then existing cable television systems, brought better reception for over-the-air broadcasting signals to residents. Ibid. However, MATV systems did not add in other programming, as some cable services had started to do, so that there was no editorial control by the operator, usually the owner of the building. See First Report and Order, Docket No. 20,561, 63 F.C.C. 2d 956, 996 (1977). Thus, MATV systems operated simply to provide better reception for over-the-air broadcast signals. Ibid.
SMATV systems first began to appear in 1979, as receive-only earth stations that could pick up satellite programming were hooked into master antenna television systems. D. Brenner & M. Price, Cable Television and Other Nonbroadcast Video, § 13.01 (rev. ed. 1985). The four year time lag between the introduction of satellite programming in 1975 and development of SMATV occurred in large part because it was not until 1979 that the FCC decided to de-regulate the acquisition and use of the technology needed for SMATV receive-only earth stations. See Regulation of Domestic Receive-Only Satellite Earth Station, 74 F.C.C. 2d 205 (1979); D. Brenner & M. Price, supra, at § 13.01.
The situation in 1972 is parallel to the situation that exists currently. Today, both master antenna television and cable television systems offer satellite programming, using earth-stations
that receive the satellite signals. The relationship between these two competing technologies is thus similar to that which existed in 1972 when the Legislature passed the Act, although there was a somewhat wider gap between the types of programming available. This gap (uninterrupted movies on some cable systems) should not be over-emphasized, however, because the key development in cable programming, satellite services, had not been introduced in 1972. Back then MATV and cable systems offered similar advantages to consumers, namely better reception of over-the-air signals. In effect, mandating the right of access for cable companies results in no more than equalizing the competitive position of cable to SMATV, as the latter by its nature already has access to any customer who desires it since SMATV is itself set up in the complex or development where the customer lives.
It is of some significance that the initiation of SMATV systems, in 1979, was several years before the Legislature's amendments of the Act in 1982 and 1983. These two amendments broadened Section 49 of the statute to encompass more multiple unit areas. Because SMATV was at the time a growing "new technology" that had by then acquired an estimated 500,000 subscribers, 2 C. Ferris, F. Lloyd & T. Casey, supra, at § 21.02 (citing M. Howard and S. Carroll, "SMATV: Strategic Opportunities in Private Cable," National Association of Broadcasters, Nov., 1982, p. 1), it must be presumed that the Legislature was aware of these systems. Moreover, Loretto, supra, 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868, had recently been decided with its clear mandate that just compensation was a concomitant condition for cable television access. Hence the Legislature cannot be viewed either as indifferent or passive in light of these relevant circumstances -- the burgeoning technology in the field and the constitutional understanding of just compensation. Rather, the Legislature's actions in 1982 and 1983 demonstrate its intent to continue and broaden Section 49 and the legislation's scheme. These amendments are not
simply legislative thumb twirling awaiting only a court's confirmation of ...