Opinion
Civil Action No. 02-2652
March 31, 2003
MINUTE ENTRY
This matter comes before the Court on motion for summary judgment filed by Charter Communications ("Charter"). Having considered the record, the memoranda of counsel and the law, the Court has determined that summary judgment is inappropriate for the following reasons.
Charter brought this suit for declaratory action against Harry Bourg Corporation ("Bourg") under Cable Communications Policy Act of 1984, 47 U.S.C. § 541 ("Cable Act") and diversity of citizenship. It seeks a declaration that it has the right to replace existing cable lines with fiber optic lines by using certain existing cable attachments in place along Four Point Road in Terrebonne Parish without paying compensation to Bourg, the owner of the property.
Under Section 541(a)(2) "Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is [are] within the area to be served by the cable system and which have been dedicated for compatible uses . . ." There is no issue here that Charter qualifies as a "franchise" for purposes of the Cable Act, or that the Cable Act provides an implied cause of action for a franchise by virtue of this section.
The plaintiff claims entitlement to summary judgment despite serious shortcomings in the proof. While the documentary evidence demonstrates that Charter was one of a number of apparently related but distinct corporate entities, it does not reveal a relevant agreement betweenCharter and Bourg, and does not show an assignment of rights to Charter to which Bourg consented. Charter's argument that Bourg ratified an assignment is not based on undisputed facts.
In addition, the evidence falls short of showing a dedicated public utility easement, which is required for the plaintiff to prevail under the Cable Act. In Cable Holdines of Georgia, Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600 (11th Cir.), cert. denied, 506 U.S. 862 (1992), the court distinguished between types of easements for purposes of the Cable Act. In so doing, the court noted that its previous holding in the case upon which Charter relies, Centel Cable Television Co. v. Thomas. J. White Development Corp., 902 F.2d 905 (11th Cir. 1990), involved a dedicated utility easement. See also Cable Arizona Corp. v. Coxcom, Inc., 261 F.3d 871 (9th Cir. 2001); TCI of North Dakota v. Schriock Holding Co., 11 F.3d 812 (8th Cir. 1993); Media General Cable of Fairfax, Inc. v. Sequoyah Condominium Council or Co-Owners, 991 F.2d 1169 (4th Cir. 1993). Bourg admits that some of its property has been dedicated for public use, but not the property involved in this dispute. It also provides proof that its agreement with the South Louisiana Electric Cooperative Association (SLECO) is a private one and the the right of way to Terrebonne Parish was limited in scope.
The Court previously remanded to state court a case which had been consolidated with this action. Trial in that case is set for May 7, 2003. The Court had previously ordered memoranda on the issue of whether it should abstain from exercising its jurisdiction over this declaratory action, which it did not consider due to a misunderstanding that this matter was in the process of settling. In light of the pending trial date in state court, however, and the apparent agreement that all issues will be resolved therein, the Court does not address the abstention issue at this time.
The parties are asked to advise the Court if the state court trial in May does not resolve the differences between them.
Accordingly, IT IS ORDERED that the motion for summary judgment filed by Charter Communications is DENIED.