867 F.

2d 151

CABLE INVESTMENTS, INC., Appellant,

v.
Mark WOOLLEY; Waterford Associates, a Pennsylvania
limited
partnership; Cold Springs Apartment Associates, a
Pennsylvania limited partnership; First Investors General,
Inc.; and MGM Enterprises, Inc.
No. 88-5413.

United States Court of Appeals,

Third Circuit.
Argued Oct. 18, 1988.
Decided Jan. 31, 1989.

Harvey Freedenberg (argued), Alan R. Boynton, Jr., McNees, Wallace &

Nurick, Harrisburg, Pa., for appellant.
Deborah C. Costlow (argued), Gretchen L. Lowe, Piper & Marbury,
Washington, D.C., for appellees.
Before SLOVITER and HUTCHINSON, Circuit Judges, and
DEBEVOISE, District Judge.*
OPINION OF THE COURT
SLOVITER, Circuit Judge.

I.

At issue in this case is the right of plaintiff-appellant Cable Investments, Inc., a

provider of cable television service, to require the owners of two apartment
complexes to give it access to the premises so that it can provide its cable
services to the tenants. The district court dismissed Cable Investments' suit,
Cable Investments, Inc. v. Woolley, 680 F.Supp. 174 (M.D.Pa.1987), and for
the reasons that appear below, we will affirm.

Background
A.
2

Defendant Mark Woolley is a general partner in defendant Waterford

Associates and defendant Cold Springs Apartment Associates, both
Pennsylvania limited partnerships, and is a major stockholder in defendant
MGM Enterprises, Inc. (MGM) and defendant First Investors General, Inc.,
both Pennsylvania corporations (collectively referred to for convenience as
"Waterford Associates"). Waterford Associates owns two apartment complexes,
Coventry at Waterford and King's Arms at Waterford (collectively
"Waterford"), both located in York Township, York County, Pennsylvania.

Cable Investments offers cable television service to subscribers in York

Township pursuant to a nonexclusive franchise granted it by the township. It
provided cable television service to Coventry at Waterford beginning in 1979,
and prior thereto through its predecessor, Keystone Communicable, Inc. As of
August 1, 1985, Cable Investments served 189 subscribers out of the 288 units
in Coventry at Waterford. Cable Investments began providing cable television
service to King's Arms at Waterford after it had prewired the units during their
construction, beginning in October 1984. As of August 1, 1985, Cable
Investments provided service to 16 of the 60 units in the complex. There is no
written agreement between Cable Investments and Waterford Associates for the
provision of cable television at Waterford, and Cable Investments does not
claim that it has any right based on contract.

In July 1985, Waterford Associates notified Cable Investments that as of

August 1, 1985, it would no longer be permitted to provide cable television
service to Waterford, and notified the Waterford tenants that Cable Investments
would no longer provide such service. Although Waterford Associates
requested Cable Investments to remove its equipment (primarily amplifiers
placed along the cables on Waterford property), Cable Investments refused to
do so. On approximately August 1 Waterford Associates disconnected Cable
Investments' system. Thereafter, MGM began offering cable service to
Waterford tenants through a satellite dish erected on the Waterford premises.

On September 10, 1985, Cable Investments initiated this suit in federal court
based on a variety of federal and state claims and sought damages and
injunctive relief to require Waterford Associates to permit Cable Investments to
continue to offer its cable television service to Waterford Associates' tenants.
On December 29, 1987, the district court granted Waterford Associates' motion
to dismiss the claims alleging violation of Cable Investments' rights under the

First Amendment, the Cable Communications Policy Act of 1984, 47 U.S.C.

Sec. 521 et seq. (Supp. IV 1986), the free speech clause of the Pennsylvania
Constitution, and Pennsylvania's Landlord and Tenant Act, 68 Pa.Stat.Ann. Sec.
250.554 (Purdon Supp.1988). Cable Investments subsequently voluntarily
dismissed the remainder of its claims, thereby rendering the district court's
order dismissing the four claims a final order from which Cable Investments
appeals.
B.
6

While a detailed understanding of the technicalities of the provision of cable

television service is not essential to the disposition of the issues before us, a
brief description will be useful. A cable television company receives television
signals via, inter alia, a satellite link and/or an antenna tower at its receiving
stations, called cable headends, processes the signals in form for conversion
into television programming, and distributes the signals to the communities it
serves through coaxial cables along trunk lines, which may be strung along
telephone poles or placed underground following public rights of way. From
the trunk lines, distribution (or feeder) lines run onto the property of
subscribers. Distribution lines can also be aerial or underground. It is obviously
desirable for the cable company to place its distribution lines in trenches dug by
the telephone or utility companies during the construction of houses or
apartments, thereby avoiding the additional expense of opening and closing the
trenches or installing and maintaining an aerial system. Both trunk lines and
distribution lines periodically have amplifiers to boost the signals, because
signal power gradually diminishes as distance is traversed.

The distribution lines are connected to tap units, or distribution boxes, affixed,
in this case, to the outside of the apartment buildings. From these tap units,
drop lines extend to individual apartments. If the drop lines are installed during
the construction of a multi-dwelling unit, the wiring can be placed inside the
walls of the building and provide access to an individual apartment through an
outlet similar to an electrical outlet. Such prewiring is a cheaper, more
aesthetically pleasing, and more convenient alternative to postwiring after
construction is complete and the residents have moved into the apartments.
Postwiring requires that wires be strung either on the outside of buildings or on
the inside along halls or through completed walls and ceilings/floors. In
addition, because the wires ultimately must run into individual units, postwiring
requires coordination with the residents of the building. See generally United
States Dep't of Commerce, Video Program Distribution and Cable Television:
Current Policy Issues and Recommendations, app. B at 3-6 (National
Telecommunications and Information Administration Report No. 88-233, 1988)

(hereinafter Department of Commerce Report).

II.
8The Cable Communications Policy Act of 1984
A.
9

Cable Investments argues first that its right of access to and including the
interior of a multi-unit dwelling for the purpose of offering cable television
service can be derived from the Cable Communications Policy Act of 1984, 47
U.S.C. Sec. 521 et seq. (Supp. IV 1986) (the Cable Act).

10

In support of its motion to dismiss, Waterford Associates argued, and the

district court agreed, that no private right of action by a franchisee can be
implied under the Cable Act. Instead, the district court held, enforcement
should be left to the franchising authority. 680 F.Supp. at 179. The district
court's opinion was issued shortly before the decision of the Eleventh Circuit
holding that section 621(a)(2) does create a cause of action in favor of a cable
company. See Centel Cable Television Co. v. Admiral's Cove Assocs., 835
F.2d 1359 (11th Cir.1988) (holding Congress provided a right of action to a
cable company seeking to place its cable in open trenches through easements
listed on recorded plats provided by a residential developer for electric and
telephone utilities). While we intimate no opinion on a private right of action
under the Centel facts, we note that the substantive right sought to be enforced
in Centel is more limited than that sought here, where Cable Investments seeks
access to tenants inside buildings owned by Waterford Associates.

11

Generally, in cases considering whether a private right of action can be implied,

the substantive right at issue has been established or assumed, and the only
issue is whether it can be enforced and by whom. That is not the case with the
right of a cable television company to provide service and utilize facilities
within a private apartment complex. Because it appears more orderly to decide
first whether the statute gives a substantive right of access to multi-unit
dwellings before reaching the issue of who can enforce any such right,1 we
asked the parties to brief the substantive issue, which had been raised but not
decided in the district court. It is an issue of law, which the parties agree it is
appropriate for us to decide.

B.
12

The Cable Act created a new framework for the regulation of the rapidly

developing cable television industry. The overall purpose of the Act is to "(1)
establish a national policy concerning cable communications; (2) establish
franchise procedures and standards which encourage the growth and
development of cable systems and which assure that cable systems are
responsive to the needs and interests of the local community; (3) establish
guidelines for the exercise of Federal, State, and local authority with respect to
the regulation of cable systems; (4) assure that cable communications provide
and are encouraged to provide the widest possible diversity of information
sources and services to the public; (5) establish an orderly process for franchise
renewal which protects cable operators against unfair denials of renewal where
the operator's past performance and proposal for future performance meet the
standards established by this subchapter; and (6) promote competition in cable
communications and minimize unnecessary regulation that would impose an
undue economic burden on cable systems." 47 U.S.C. Sec. 521.
13

As the Supreme Court noted recently, the Cable Act left franchising to state or
local authorities. See City of New York v. FCC, --- U.S. ----, 108 S.Ct. 1637,
1641, 100 L.Ed.2d 48 (1988). The same section of the Cable Act, section
621(a), that provides for the award of franchises, see 47 U.S.C. Sec. 541(a)(1),
also authorizes the franchisee to construct its system over public rights-of-way
and easements dedicated for compatible uses, see 47 U.S.C. Sec. 541(a)(2). It is
the latter provision on which Cable Investments relies for its claim of a
statutory right to offer cable television service to Waterford's tenants. The
relevant language provides:

14

Any franchise shall be construed to authorize the construction of a cable system

over public rights-of-way, and through easements, which is [sic] within the
area to be served by the cable system and which have been dedicated for
compatible uses....

15

47 U.S.C. Sec. 541(a)(2).

16

Cable Investments recognizes that its attempt to compel access to the Waterford
tenants cannot be grounded on its statutory right to construct its cable system
"over public right-of-way." It has not suggested that there is any public rightof-way through which it can place the final cable connections needed to hook
up its service to multi-unit dwellings. Instead it argues that the statutory right to
construct its system "through easements" gives it access over any easements
which have been set aside for uses compatible with cable television, including
those under private arrangement with the owner.

17

Under its argument, if property owners grant easements to utilities through

17

Under its argument, if property owners grant easements to utilities through

which cable companies could install their wiring, then the cable companies can
compel the owners of a multi-unit dwelling, such as Waterford, to give them
access to the private property and inside the apartment buildings themselves.
Specifically, it argues that "Section 621(a)(2) [47 U.S.C. Sec. 541(a)(2) ]
allows cable operators such as Cable Investments to use any easements which
have been dedicated to a use compatible with the provision of cable television,
not just those which are on the exterior of buildings. To the extent that the
easements continue into buildings, Section 621(a)(2) requires access."
Supplemental Brief of Appellant at 3 (emphasis in original).

18

We find no support in the express language of the statute for Cable

Investments' position that Congress authorized franchised cable companies to
force their way onto private property, over the protests of the property owner, in
order to offer cable television service to the tenants of the property owner. The
statute does not define the term "easements" or "dedicated for compatible uses."
In light of this ambiguity, we turn for guidance to the legislative history.

C.
19

The Report from the House Committee on Energy and Commerce, the principal
source of legislative history on the Cable Act, states that,

20

Subsection 621(a)(2) [codified at 47 U.S.C. Sec. 541(a)(2) ] specifies that any

franchise issued to a cable system authorizes the construction of a cable system
over public rights-of-way, and through easements, which have been dedicated
to compatible uses. This would include, for example, an easement or right-ofway dedicated for electric, gas or other utility transmission. Such use is subject
to the standards set forth in section 633(b)(1)(A), (B) and (C). Consideration
should also be given to the terms and conditions under which other parties with
rights to such easements and rights-of-way make use of them. Any private
arrangements which seek to restrict a cable system's use of such easements or
rights-of-way which have been granted to other utilities are in violation of this
section and not enforceable.

21

H.R.Rep. No. 934, 98th Cong., 2d Sess. 59, reprinted in 1984 U.S.Code Cong.
& Admin.News 4655, 4696.

22

As is evident, this excerpt provides only limited guidance on the question

before us. Although it clarifies that a cable television franchisee may use
easements dedicated for electric, gas or other utilities, it does not illume the
critical issue, whether those easements are considered to run up to as well as

into an apartment building for purposes of mandatory access. The final sentence
of the excerpt, as Cable Investments emphasizes, provides that private attempts
to restrict access are null, but inasmuch as the sentence is explicitly limited to
"such" easements as are covered by the section, this obviously begs the
question.2
23

We find more guidance in the legislative history of section 633, referred to in

the foregoing excerpt of the Report. Section 633, which was originally included
in the bill as it was reported out of the House Committee on Energy and
Commerce, did expressly provide for mandatory access to tenants within a
multi-unit dwelling. The relevant language was:

24

Sec. 633. (a) The owner of any multiple-unit residential or commercial building
or manufactured home park may not prevent or interfere with the construction
or installation of facilities necessary for a cable system, consistent with this
section, if cable service or other communications service has been requested by
a lessee or owner ... of a unit in such a building or park.

25

H.R. No. 4103, 98th Cong., 2d Sess. Sec. 633 (1984); reprinted in H.R.Rep.
No. 934, 98th Cong., 2d Sess. 13.

26

What is significant for our purposes is that section 633 was dropped from the
bill that was passed by Congress. The fact that section 633 was not part of the
Act as it ultimately emerged from Congress is a strong indication that Congress
did not intend that cable companies could compel the owner of a multi-unit
dwelling to permit them to use the owner's private property to provide cable
service to apartment dwellers. See Russello v. United States, 464 U.S. 16, 2324, 104 S.Ct. 296, 300-01, 78 L.Ed.2d 17 (1983) ("Where Congress includes
limiting language in an earlier version of a bill but deletes it prior to enactment,
it may be presumed that the limitation was not intended."); Thompson v.
Kennickell, 797 F.2d 1015, 1024-25 (D.C.Cir.1986) (finding deletion of
provision to contribute to evidence of congressional intent).

27

The absence of a mandatory access provision in the bill as finally enacted was
specifically remarked upon by Congressman Wirth, the chairman of the
Subcommittee on Telecommunications of the House Energy and Commerce
Committee from which the bill emanated. Representative Wirth was one of the
original sponsors of the bill and had been in favor of the multi-unit dwelling
provision. After its deletion, he stated:

28

The purpose of [section 633] was to ensure that all consumers including those

who reside in apartments and mobile home parks, had the opportunity to
receive cable service.... The provision prohibited landlords from interfering
with a consumer's ability to receive cable service--an increasing [sic]
troublesome problem whereby landlords become the ultimate electronic editors,
deciding to what sources of electronic information, if any, a consumer shall
have access.
29

A number of States have enacted laws to provide for citizen access so that
consumers would not be denied access to the increasing wealth of programming
and services available over cable television. I applaud these efforts and, of
course, the fact that a similar provision is no longer part of [the bill] in no way
affects the applicability of those State laws. I hope my colleagues will join with
me in the future to see to it that a similar Federal provision is enacted.

30

16 Cong.Rec. H10435 (daily ed. Oct. 1, 1984) (statement of Rep. Wirth)

(emphasis added).3

31

In addition, Representative Fields, also a member of the House Energy and

Commerce Committee, who had opposed the mandatory access provision,
commented as follows on the final version:

I32am particularly pleased with the version of the legislation before us today which
differs slightly from the bill reported from the Commerce Committee in June. The
bill before us today does not contain a provision I had particular concern about in
committee, the so-called consumer access to cable.
33

Under that provision, if one tenant in an apartment building requested cable, a

property owner would have been forced to wire the entire building. Although I
concur with the intent of this provision, to make cable service available to the
greatest number of individuals, I believe this goal can be achieved in a better,
more orderly manner through a negotiated agreement between the cable
operator and the property owner, and not by legislative fiat as this legislation
had provided.

34

Fortunately, since the time of the committee markup anid [sic] following the
most recent series of negotiations between representatives from the cities and
the cable industry, this objectionable section was deleted from this legislation,
thus clearing the way for what I hope will be early enactment of H.R. 4103.

35

Cong.Rec. H10444 (daily ed. Oct. 1, 1984) (statement of Rep. Fields)

(emphasis added). The statements by congressmen on both sides of the issue

are particularly strong evidence that the Cable Act contains no provision
mandating access to private apartments.
36

Further evidence that Congress acted deliberately in eliminating the cable

companies' mandatory access to multi-unit dwellings that would have been
granted by the original bill is the fact that the Cable Act as ultimately passed
encompasses some of the protections for property owners that the deleted
section 633 provided, but not those requiring just compensation for takings. As
drafted, section 633(b)(1)(A), (B) and (C), set out in the margin,4 required that
regulations be promulgated to safeguard the safety, functioning and appearance
of property affected by the installation of cable facilities, to place the cost of
installation, construction, operation or removal of cable facilities on the cable
operator and/or subscriber, and to provide just compensation by the cable
operator for any damages caused thereby. These sections were moved verbatim
into section 621 of the Act, 47 U.S.C. Sec. 541, when section 633 was deleted
from the bill and now appear in 47 U.S.C. Sec. 541(a)(2)(A)-(C), the only
difference being that in lieu of requiring regulations by the FCC or the
franchising authority, the statute as enacted requires that these matters be
ensured by the cable operator.5

37

On the other hand, the subsections of section 633 that were not carried over into
section 621 of the Cable Act would have required the prescribing of regulations
to provide "methods for determining just compensation" under this section,
section 633(b)(1)(D), and would have required that such regulations consider
the extent of physical occupation, the long-term damage, and the extent of
interference with normal use and enjoyment of the property caused by the cable
system.6

38

The House Committee Report explains that this subsection of section 633 was a
conscious attempt to create a mechanism for providing just compensation to
property owners. See House Report No. 934 at 80-81; 1984 U.S.Code Cong. &
Admin.News at 4717-18. The Report states that Congress included the
compensation mechanism "[i]n order to comply with the constitutional
requirements" of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (holding that New York law
granting cable television companies right to place wires across private property
worked a taking of private property). House Report No. 934 at 81; 1984
U.S.Code Cong. & Admin.News at 4718. Congress' failure to transfer to section
621 the subsections requiring regulations that guaranteed just compensation for
takings and enumerating the factors to consider in calculating just
compensation suggests that Congress recognized that once it deleted the
provision for mandatory access to multiple unit dwellings, it need no longer be

concerned with the "taking" issue.

39

Just compensation for the value of the property taken is to be distinguished

from just compensation for damages, which was the subject of a separate
provision in section 633 and which was transferred to section 621. See 47
U.S.C. Sec. 541(a)(2)(C). Although two district courts have suggested that
section 621(a)(2)(C) does incorporate section 633's provisions for just
compensation for the taking of the owner's property that mandatory access
entails, Greater Worcester Cablevision, Inc. v. Carabetta Enterprises, Inc., 682
F.Supp. 1244, 1259 (D.Mass.1985); Cable Holdings, Inc. v. McNeil Real Estate
Fund IV, Ltd., 678 F.Supp. 871, 873-74 (N.D.Ga.1986), we find them
unpersuasive in light of the legislative history. Section 633 as drafted contained
both subsection (b)(1)(C), requiring regulations providing for just
compensation for damages, and subsection (b)(1)(D), requiring regulation of
methods for determining just compensation. It is unlikely that they were
intended to cover the same thing, particularly since subsection (d), which listed
the factors to be considered in prescribing methods of just compensation for a
taking, cross-referenced subsection (b)(1)(D) but not (b)(1)(C). Congress
recognized the distinction between the damages for which the cable company
must compensate under subsection 621(a)(2)(C) and long-term damages which
are to be considered in determining just compensation for a taking, which were
the subject of the deleted subsection 633(d)(2).

40

In light of Congress' deletion of the provisions that insured payment for the
value of property taken pursuant to the mandatory access provision, we read the
requirement in section 621(a)(2)(C) that owners be "justly compensated" by the
cable operator for any damages to be unrelated to any takings issue. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 442-43, 107 S.Ct. 1207, 1219, 94 L.Ed.2d 434
(1987) (" 'Few principles of statutory construction are more compelling than
the proposition that Congress does not intend sub silentio to enact statutory
language that it has earlier discarded in favor of other language.' ") (quoting
Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 392-93, 100
S.Ct. 1723, 1741-42, 64 L.Ed.2d 354 (1980) (Stewart, J., dissenting)).

41

Finally, were there any lingering doubt from the legislative history that the
version of the Cable Act ultimately enacted does not contemplate mandating
installation and operation of cable facilities in a multi-unit dwelling over the
objection of the owner, they should be laid to rest by the deletion in the Cable
Act of the subsection of section 633 that prohibited owners of multi-unit
dwellings from demanding more than just compensation. Section 633(c) would
have provided: "Any owner of such a multiple-unit building or park may not
demand or accept payment from any cable operator in exchange for permitting

construction or installation of facilities necessary for a cable system on or

within the premises in excess of any amount which constitutes just
compensation." H.R. No. 4103, 98th Cong., 2d Sess. Sec. 633(c) (1984),
reprinted in H.R.Rep. No. 934, 98th Cong., 2d Sess. 13. Its deletion is
explicable only if Congress recognized that the bill as enacted did not provide
for mandatory installation of cable facilities in such multi-unit buildings.
42

The deletion of section 633 in the final version of the Cable Act, the transfer of
some of its provisions to section 541 but not those provisions detailing the
factors to be considered in arriving at just compensation for a taking, the
deletion of any reference to multi-unit buildings, and the statements of the
congressmen approving and decrying the deletion of section 633 lead
ineluctably to the conclusion that Congress made a considered decision that the
Cable Act should not give cable operators the right to impose their service on
owners of multi-unit dwellings who choose not to use them.7

D.
43

Our holding that the Cable Act does not mandate access by cable companies to
multi-unit dwellings avoids the necessity of resolving the parties' dispute over
whether access by more than one cable system is technologically feasible.
Waterford Associates contends that simultaneous dual use of the same cable
wiring is impossible. Cable Investments does not contradict that but contends
that it is possible for a cable company and a satellite system to serve the same
apartment complex. Waterford Associates responds that if parallel systems
were installed there would be too many wires too close together at the point of
initial distribution, which could cause interference and resulting diminution of
the quality of reception. In light of our construction of the statute, we need not
remand for a factual determination on this issue.

44

It appears that cable television can now be provided not only through wired
systems such as those operated by cable companies like Cable Investments and
private systems using a satellite master antenna like MGM but also by wireless
cable systems using different technologies. The Department of Commerce
predicts that additional systems are likely to appear in the future. See
Department of Commerce Report, app. B at 8-12. In light of the proliferation of
systems and the possibility of interference, a legislature enacting a mandatory
access provision would have to consider whether to regulate also how selection
should be made from among competing systems. Our holding that the statute
does not mandate giving the cable company access to the building leaves that
selection to the owner of the property. We may assume that selection will be
based on the realities of the marketplace and that the wishes of the tenants will

not go unheeded since cable television may be one of the services that
prospective tenants consider in their selection of a building.
45

Finally, we are guided in no small part by the requirement to interpret a statute

when possible to avoid raising constitutional questions. See United States v.
Grace, 461 U.S. 171, 175-76, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983);
Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932).
Our statutory construction of the Cable Act avoids the constitutional issue that
would be created were access mandated without providing for just
compensation to be made to the owner.

46

In Loretto, the Supreme Court held that a statute that mandates installation of
cable television facilities on private premises constitutes a taking of the
property. The Court reaffirmed "the traditional rule that a permanent physical
occupation of property is a taking," Loretto, 458 U.S. at 441, 102 S.Ct. at 3179,
and noted that the installation of cable television involved attachment of plates,
boxes, wires, bolts and screws to the building. Id. at 438, 102 S.Ct. at 3177; see
also Kaiser Aetna v. United States, 444 U.S. 164, 180, 100 S.Ct. 383, 393, 62
L.Ed.2d 332 (1979) (factor in finding taking was "actual physical invasion of
the privately owned [property]").

47

Cable Investments relies on two district court cases as rejecting a challenge

based on Loretto to the construction of section 621(a)(2) of the Cable Act as a
mandatory access provision. See Greater Worcester Cablevision, Inc. v.
Carabetta Enterprises, Inc., 682 F.Supp. 1244, 1258-59 (D.Mass.1985); Cable
Holdings, Inc. v. McNeil Real Estate Fund VI, Ltd., 678 F.Supp. 871, 874
(N.D.Ga.1986). However, both cases construe the Cable Act as providing for
just compensation for the taking that would be effected if the Cable Act
mandated access to the interior of private buildings. We have already explained
why we disagree with those district courts' statutory interpretation, since
Congress deleted the provisions designed to comply with Loretto. Moreover, in
Greater Worcester the court held unconstitutional the Massachusetts statute
which did mandate access because it failed to provide for just compensation for
landlords for the installation of cable on their property. See 682 F.Supp. at
1252.

48

Cable Investments also suggests that since the wires are already in place, no
taking occurs. It concedes, however, that only one signal at a time can go
through those lines. Transcript of Oral Argument at 28. A requirement that
Waterford Associates must permit Cable Investments to use those lines could
be viewed to effect a permanent occupation of Waterford Associates' property8
which would constitute a taking. See FCC v. Florida Power Corp., 480 U.S.

245, 251, 107 S.Ct. 1107, 1112, 94 L.Ed.2d 282 (1987) (a critical factor in
Loretto was that the statute "specifically required landlords to permit permanent
occupation of their property by cable companies"). However, in light of our
holding that Congress did not provide for mandatory access to multi-unit
dwellings, there was no necessity for Congress to provide for just
compensation for the value of the property taken, and hence the absence of any
such provision does not raise any constitutional question.
III.
The Pennsylvania Landlord and Tenant Act
49

The alternate statutory basis on which Cable Investments relies for its claim for
access to Waterford is the Pennsylvania Landlord and Tenant Act. Cable
Investments argues that under Pennsylvania law it can follow the utilities'
easements to the exterior of the building and that thereafter its access to the
interior of each tenant's apartment is mandated under section 250.554 of the
Pennsylvania Landlord and Tenant Act or common law.

50

It is true, as noted by Representative Wirth, that a number of states have passed

statutes mandating access to multi-unit dwellings. For example, the
Massachusetts statute considered in Greater Worcester Cablevision provided
that a landlord must permit a cable operator to install its cable television
equipment on its property if a tenant has asked for cable service. See 682
F.Supp. at 1247. Indeed, that is precisely why the court held the statute
unconstitutional. See id. at 1248-52.

51

The Pennsylvania Landlord and Tenant Act is not analogous. Section 250.554
provides, in pertinent part, that,The tenant shall have a right to invite to his
apartment or dwelling unit such employees, business visitors, tradesmen,
deliverymen, suppliers of goods and services, and the like as he wishes so long
as his obligations as a tenant under this article are observed.... These rights may
not be waived by any provisions of a written rental agreement and the landlord
and/or owner may not charge any fee, service charge or additional rent to the
tenant for exercising his rights under this act.

52

It is the intent of this article to insure that the landlord may in no way restrict
the tenant's right to purchase goods, services and the like from a source of the
tenant's choosing....

53

68 Pa.Stat.Ann. Sec. 250.554 (Purdon Supp.1988).

54

The Pennsylvania courts have not given this provision the expansive
construction Cable Investments desires. In Wilco Electronic Systems, Inc. v.
Davis, 375 Pa.Super. 109, 543 A.2d 1202 (1988), the only reported appellate
decision on this issue, the Superior Court declined to bring cable television
within the reach of section 250.554 and noted the difference between allowing
a tenant to purchase "goods, services and the like" and allowing a tenant to
force a landlord to permit a cable company to provide service to the tenant.
Unlike the former, "[t]he very nature of cable television involves tangible
equipment which must be permanently installed and may result in substantial
damage to property." Wilco, 543 A.2d at 1209. At least two Courts of Common
Pleas had previously reached the same conclusion. See T-C Harrisburg Co. v.
Sammons Communications, 107 Dauphin County Rep. 411, 417-18 (1987);
Weaver v. Dallmeyer, 101 York Legal Record 110 (1987).

55

The only authority supporting Cable Investments' position, Stephenson v.

Diversified Holdings Corp., No. 5144 Equity 1983 (C.P. Berks, Aug. 24,
1983), slip op., aff'd without op., 339 Pa.Super. 626, 488 A.2d 1171 (1984), is
of limited value because the issue arose in the context of a preliminary
injunction and the court noted that the final resolution of the parties' rights
would await trial. Stephenson, slip op., at 3, 6. In any event, the Superior
Court's subsequent construction of the statute in Wilco would take precedence.

56

We defer to the Wilco court's reasonable construction of section 250.554.

Permitting a tenant to insist that a landlord allow a cable company to install
equipment and provide service is an intrusion of a qualitatively different nature
than the temporary intrusion effected by tradesmen and business visitors. We
also reject summarily Cable Investments' argument that the common law gives
tenants such rights, an argument that would have been discussed in Wilco were
it viable.

57

Because we hold that Pennsylvania law does not give Cable Investments any
rights to the interior of Waterford's buildings, we need not decide the extent to
which it can piggyback on the private easements of various utilities up to the
exterior of the building under either Pennsylvania law or the Cable Act.

IV.
The First Amendment of the United States Constitution
58
59

We need spend little time on Cable Investments' argument that Waterford

Associates' refusal to grant it access is a violation of the First Amendment of
the United States Constitution. Although a municipal ordinance restricting

cable franchising raises a cognizable First Amendment claim, see City of Los
Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494-95, 106 S.Ct.
2034, 2037-38, 90 L.Ed.2d 480 (1986), in this case Cable Investments
complains about Waterford Associates' conduct restricting its access, not the
conduct of the state or a municipality. Following an extensive discussion of the
applicable precedent, Judge Kosik dismissed this count on the ground that no
state action was implicated. 680 F.Supp. at 176-78.
60

Cable Investments, while admitting that Waterford is not a "company town",

nonetheless argues that the apartment complexes bear a close enough
resemblance to the "company town" in Marsh v. Alabama, 326 U.S. 501, 66
S.Ct. 276, 90 L.Ed. 265 (1946), that Waterford Associates' exclusion of Cable
Investments should be considered state action. Marsh is inapposite. There, a
company effectively operated as the municipal government, in that it owned the
streets, sidewalks, and business block, paid the sheriff, privately owned and
managed the sewage system, and owned the building where the United States
post office was located. Id. at 502-03, 66 S.Ct. at 276-77. "[T]he owner of the
company town was performing the full spectrum of municipal powers and
stood in the shoes of the State." Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92
S.Ct. 2219, 2229, 33 L.Ed.2d 131 (1972). Marsh has been construed narrowly.
See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158-59, 98 S.Ct. 1729, 1734-35,
56 L.Ed.2d 185 (1978); Hudgens v. NLRB, 424 U.S. 507, 513-21, 96 S.Ct.
1029, 1033-37, 47 L.Ed.2d 196 (1976); see also Robison v. Canterbury Village,
Inc., 848 F.2d 424, 428-31 (3d Cir.1988).

61

Cable Investments has not alleged, and the record does not suggest, that
Waterford Associates has become a substitute for a municipal government in
any meaningful way. There is no allegation that the two complexes in this case
are anything more than apartment buildings with some associated shopping
facilities and office space. We agree with the district court that Cable
Investments has failed to allege the requisite state action to support its First
Amendment claim.

V.
The Free Speech Clause of the Pennsylvania Constitution
62
63

Finally, Cable Investments argues that Waterford Associates' refusal to permit

it access to Waterford is a violation of Article I, Section 7, of the Pennsylvania
Constitution. That provision declares that,

The free communication of thoughts and opinions is one of the invaluable rights of
64

man, and every citizen may freely speak, write and print on any subject....
65

Pa. Const. art. I, Sec. 7.

66

Cable Investments argues that this provision has been interpreted and applied
more broadly as to state action than has the First Amendment. For support,
Cable Investments cites Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382
(1981). Although the Court in Tate held that persons distributing political
leaflets on the grounds of a private college during a public symposium at which
the director of the FBI was speaking were engaging in speech protected under
the Pennsylvania Constitution, it did so on the ground that the college had held
itself out as a forum open to the public. 495 Pa. at 174-75, 432 A.2d at 1390-91.
The Tate opinion was clarified in Western Pa. Socialist Workers 1982
Campaign v. Connecticut General Life Ins. Co., 512 Pa. 23, 515 A.2d 1331
(1986) (plurality opinion), where the Court held that a shopping mall could
exclude all individuals engaged in political solicitation. Although the theories
of the justices comprising the majority differed, all but one of the seven justices
agreed that because the shopping mall had not invited the public onto its
premises for political purposes, Article I, Section 7, was inapplicable.

67

This case is governed by Western Pennsylvania Socialist Workers rather than

Tate. Waterford Associates has not presented Waterford as a public forum for
any purpose for which Cable Investments wishes to speak. More importantly,
discrimination on the basis of the political content of the speech, a significant
factor in Tate, is not present here. Therefore, the district court did not err in
dismissing Cable Investments' claim under the Pennsylvania Constitution.

VI.
Conclusion
68

In summary, we hold that section 621(a)(2) of the Cable Act does not mandate
access by cable companies to multi-unit dwellings for the purpose of providing
their services to the tenants. Because we hold that the count of Cable
Investments' complaint based on the Cable Act states no cause of action, we
need not reach the issue whether a private right of action to enforce the right
asserted by Cable Investments can be implied.

69

We also hold, in accordance with a similar holding by the Pennsylvania

Superior Court, that the Pennsylvania Landlord and Tenant Act cannot be
construed to grant cable companies mandatory access to multi-unit dwellings.
In addition, we agree with the district court that Cable Investments' claims

under the United States Constitution and the Pennsylvania Constitution state no
cause of action.
70

For the foregoing reasons, we will affirm the dismissal of the complaint.

Hon. Dickinson R. Debevoise, United States District Court for the District of
New Jersey, sitting by designation

There is no question that Cable Investments has suffered the "injury in fact" that
satisfies the Article III standing requirement. See Association of Data
Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25
L.Ed.2d 184 (1970)

The FCC has not taken any position on this issue. Its general position that
property owners cannot deny cable access "over public rights-of-way and
through easements designated for compatible uses," see Implementation of the
Provisions of the Cable Communications Policy Act of 1984, 50 Fed.Reg.
18,637, 18,647 (1985), merely duplicates in substance the statutory language.
Id

We note in passing that even those members of Congress who supported the
draft of section 633 which would have provided mandatory access were
motivated by a concern that tenants of multi-unit dwellings might not have
access to cable in the absence of such a provision. See note 7 infra. In this case,
however, there is no basis for any such concern because Waterford's tenants do
have access to cable television, albeit service provided by a different system

Subsection (b) of section 633 provided in part as follows:

(b)(1) A State or franchising authority may, and the [Federal Communications]
Commission shall, prescribe regulations which provide-(A) that the safety, functioning, and appearance of the premises and the
convenience and safety of other persons not be adversely affected by the
installation or construction of facilities necessary for a cable system;
(B) that the cost of the installation, construction, operation, or removal of such
facilities be borne by the cable operator or subscriber, or a combination of both;
(C) that the owner be justly compensated by the cable operator for any damages
caused by the installation, construction, operation, or removal of such facilities
by the cable operator....

H.R. No. 4103, 98th Cong., 2d Sess. Sec. 633(b) (1984); reprinted in H.R.Rep.
No. 934, 94th Cong., 2d Sess. 13.
5

Section 621(a)(2) provides that:

(2) Any franchise shall be construed to authorize the construction of a cable
system over public rights-of-way, and through easements, which is within the
area to be served by the cable system and which have been dedicated for
compatible uses, except that in using such easements the cable operator shall
ensure-(A) that the safety, functioning, and appearance of the property and the
convenience and safety of other persons not be adversely affected by the
installation or construction of facilities necessary for a cable system;
(B) that the cost of the installation, construction, operation, or removal of such
facilities be borne by the cable operator or subscriber, or a combination of both;
and
(C) that the owner of the property be justly compensated by the cable operator
for any damages caused by the installation, construction, operation, or removal
of such facilities by the cable operator.
47 U.S.C. Sec. 541(a)(2)(A)-(C).

These provisions of section 633 were:

(d) In prescribing methods under subsection (b)(1)(D) for determining just
compensation, consideration shall be given to-(1) the extent to which the cable system facilities physically occupy the
premises;
(2) the actual long-term damage which the cable system facilities may cause to
the premises;
(3) the extent to which the cable system facilities would interfere with the
normal use and enjoyment of the premises; and
(4) the enhancement in value of the premises resulting from the availability of
services provided over the cable system.
(e)(1) During any period for which regulations by a State or franchising
authority are not otherwise in effect under subsection (b), regulations of the
Commission shall apply with respect to the cable system involved.

H.R. No. 4103, 98th Cong., 2d Sess. Sec. 633 (1984), reprinted in H.R.Rep.
No. 934, 98th Cong., 2d Sess. 13.
7

Even if Congress had included section 633 in the final version of the bill, Cable
Investments still might not gain access to Waterford. Section 633(h)(1)
provided that "[t]his section shall not apply to any owner of a multiple unit
residential or commercial building or manufactured home park who makes
available to residents a diversity of information sources and services equivalent
to those offered by the cable system [seeking access]." Id. at Sec. 633(h)(1).
MGM's cable television service may be equivalent to that offered by Cable
Investments
Cable Investments concedes that Waterford Associates owns the wiring
currently on the Waterford property, even though Cable Investments installed at
least some of it