Community Tele-Communications, Inc. v. Heather Corp., 677 P.2d 330

Community Tele-Communications, Inc. v. Heather Corp.

677 P.2d 330

Colo.

1984

Check Treatment

*1 part judgment of the repair of the We affirm design past regarding the proposed Park’s approval Estes denying ac- information other greenhouses and por- and reverse plan augmentation prior to the commencement quired expert awarding an tion of lawsuit. fee to the town. witness Brown Co. in case In re Finally, (E.D. 54 F.R.D. 384 Litigation, Securities proxy challenging La.1972), plaintiffs experts who depose sought to

statement preparation of in the involved were were also retained proxy statement The trial witnesses. as trial the defendant in experts were actors that the found the heart of sub that were occurrences TELE-COMMUNICA COMMUNITY suit. The trial court ject matter corporation, TIONS, INC., a Nevada that: noted Colorado, Cortez, a Col and the 26(b)(4) prevent is to purpose of Rule The municipal corporation, Petition orado opin- building his case with party from ers, opponent en- his experts that ions of guidance in the assistance gages for litigation. merits of preparation CORPORATION, a HEATHER whose experts those extends Wayne corporation, Colorado developed ‘acquired or opinions were Respondents. Gangwish, litigation or for trial.’ anticipation of No. 81SC371. 54 F.R.D. 385. Colorado, Supreme Court in these principles enunciated En Banc. litiga present applicable

cases are Wheeler, Through deposition of tion. Feb. 1984. regard facts sought to discover the district conduct and course of the town’s augmentation Wheeler plan. origins of the respect with an actor or viewer events, sought the information

these prepared anticipa deposition was not on within the litigation or for trial tion of 26(b)(4).8 To hold other meaning Rule to rele might unduly restrict access wise engi only from available information vant participated the events who neers court erred controversy. The trial awarding expert fees Estes witness its water consulta deposition of Park for the nt.9 that, special argues because of the recognized expert The district witness have that an

8. Courts cases, important opinions including acquired as some facts nature of water have anticipation of proper others in public resources, an actor or viewer and allocation water interest circumstances, litigation In such or for trial. the fees should bear "[e]ach opinions are discoverable the former facts and without, engi- having respective water involved in 26(b)(4), compliance C.R.C.P. with deposed part preparation.” Be- of trial neers Corp. v. Slater the latter are not. Nelco whereas on a more limited cause we resolve basis,‘it matter Inc., Congrove supra; v. St. Louis-San Electric unnecessary to this broader address Railway supra; re Co. In Brown Francisco proposition. Litigation, supra. Securities *2 Howard, Sherman Stephen Brett, M. Youle, Swinton, Denver, Robert E. David petitioners. for Friedman, Robbins, Hill, Hill & F. Robert Tomb, Karen A. respondents. ROVIRA, Justice. granted certiorari to review the deci of appeals

sion of the court in Heather Corp. Community Tele-Communica tions, Inc., 642 P.2d 24 (Colo.App.1981), holding ordinance, a of granted television to use the ways streets and system, to install a cable television invalid because it a franchise with out a vote of the electorate. We affirm.

I. September council of

Cortez, city, a Colorado home rule enacted Ordinance No. entitled “An Ordinance Granting to Community Permit Telecom- munications, Inc., Its Successors and As- Construct, signs, Operate and Maintain a System Cable Television of Cor- ” tez .... of the ordinance out- specific grant authority lines the Com- munity (CTI): Tele-Communications Finally, section forfeited. hereby “There engage any person be unlawful “it shall [CTI] providing construct, along operating and maintain” business of install or system in the “any equipment or facili- CATV television] streets of Cortez [cable erect, in- purpose to City, and for that signals distributing any television ties for *3 stall, construct, replace, recon- repair, per- through system, unless a a CATV on, in, over, struct, and retain maintain authorizing ... has first been mit such use along any public under, upon, and across city. from the obtained” all and now laid out or dedicated street respon- passed, 532 was After Ordinance thereto thereof and additions extensions (Heather) filed Corporation dent Heather wires, area, poles, permit in the city complaint1 against and CTI ducts, conduit, vaults, conductors, cable, 13-51-106, C.R. pursuant to section manholes, amplifiers, appli- pedestals, Judg- Declaratory S.1973, the Uniform attachments, property ances, and other or- complaint sought an Law. The ments appurtenant necessary and to may be as County District der from the Montezuma system; and in addition so to the CATV declaring ordinance to be unlaw- Court use, provide similar facili- operate, and enjoining the defend- permanently ful and from or leased properties ties or rented proceeding under it. Heather ants from including not limited persons, other that, a true claimed instead grantee utility or other any public CTI, actually permit Ordinance permitted do business franchised Ac- “franchise.” a cable television City.” X, to article section cording of the Cor- essence, CTI authorizes however, Charter, franchise tez “[n]o and other occupy” the streets “use and upon granted except the vote shall be public ways in Cortez Ordinance electors.” Since constructing and laying its coaxial cable city rather enacted council 532 was system. operating a cable television and vote, argued that popular Heather than explain of the ordinance Other sections city and was void. charter it violated “permit.” conditions of CTI’s the terms and and Cortez moved dismiss CTI grant to provides that the CTI is Section 3 upon a claim complaint for failure to state exclusive, city reserves the C.R.C.P. granted, relief can be see which other right to a similar 12(b)(5), responded Heather with mo- person, and that the ordinance creates a summary judgment. See C.R.C.P. tion for in CTI. not a franchise 56(a). requested the dis- parties then term of the as if each trict to decide the issues that, upon application by years ten for summary judg- for had filed motion CTI, permit may for be renewed sub- “the court en- September ment. provided CTI sequent year periods” ten ... declaring Ordinance No. tered a faithfully performs all of the conditions arti- unlawful and violation of be provides that if CTI permit. Section 15 X, the Cortez Charter cle section of city “may, after hear- perform, the fails to Constitu- failure,” and article XX of the Colorado substantial ing, determine such decision, the court tion.2 As a months “to rem- basis point CTI has three adopted following conclusions of law: permit will be edy conditions” or the alleged Corpo- plaintiff, was a “citi- complaint alleged it was that he Heather that the taxpayer of Cortez.” zen and formed for ration was a Colorado providing “express purpose” cable televi- part: XX states in 2. Section of article surrounding commu- sion service to Cortez and street, alley “No filing Subsequent of the initial nities. county public place [of the ... complaints complaint, were filed two amended granted except upon the vote shall be Denver] objection. In- the second amended without electors, qualified taxpaying and the of the question complaint, Wayne Gangwish was added being shall be sub- of its spe- “C. ‘Franchise’ is not limited to a II. right granted public utility. cial to a Although majority opinion of the D. municipality Consent appeals court of did address the issue streets, alleys public places of whether standing bring Heather has recognized been as a franchise. against an action challeng- CTI and Cortez AE. franchise need not be exclusive. ing validity of Ordinance we think F. The a Cable TV necessary to resolve this issue. Apply- subject service a fran- ing the test we established in Wimberly v. chise. Ettenberg, substantially G. Ordinances similar to (1977),we conclude Heather has stand- usually Ordinance 532 determined to under Uniform Declaratory Judg- ” of a franchise .... Law, ments section 13-51-101 et seq., C.R. The court concluded that “Ordinance 532 S.1973. In view our *4 resolution the temporary permit does but is Heather, standing issue as to we need not an attempt provisions rather to evade the consider whether the respondent, other by calling grant permit of the Charter the Wayne Gangwish,4 standing. also has reality when in it has all the earmarks of a Heather claims that it was “formed for original). franchise.” (emphasis It then express purpose of constructing a cable enjoined CTI and Cortez from proceeding system providing television cable tele- the ordinance under to establish Cortez, Colorado, vision service to sur- system approval television without the rounding areas.” It claims that it has noti- electors of Cortez. fied its apply officials of desire to A panel divided of the Colorado Court of operate franchise to install and a cable Appeals the judgment affirmed of the dis- system, television that Cortez “has not Corp., trict court. Heather 642 P.2d offered Heather opportunity to apply (Tursi, J., (Colo.App.1981) dissenting). The Instead, for a franchise.” the city has court determined that Ordinance 532 position adhered to its it can grant special right which permit one or more cable television com- ordinarily belong does not to citizens in panies thereby avoid a franchise elec- absolutely and that the is Consequently, argues, tion. Heather performance pur- essential to the of CTI’s “[ujntil question of what constitutes pose. agreed with the district authority resolved, proper Heather privilege granted by the ordinance is in precluded engaging from in the busi-

fact a franchise rather than a license or such, permit. organized pursue. ness it was It is As the ordinance amounts to “an unlawful avoidance of the elec- unreasonable for Heather to make the requirement” X, expense of article section of commitment time and that is necessary charter.3 provide high quality cable upon deposit supra Gangwish alleges mitted to 4. with the See note that he is expense treasurer of the ... of such submis- taxpayer a citizen and who Cortez is adverse- applicant sion for said franchise.” ly city’s affected action taken violation applicable Section to all home Colorado addition, of Article X of the charter. he In cities, including rule Cortez. See Const. Colo. argues that the unlawful use of streets will art. sec. 6. adversely affect him because will funds expended repair have to be and restoration Tursi, dissent, Judge disagreed in his with the of the streets. While we do not address franchise-permit analysis addition, majority. here, appeals issue we note that the court of opinion he was that the com- plaint recently taxpayer standing People should discussed have been dismissed "[a] because only injury damage whose ex will result rel. Feld v. competition permittee {cert, from lawful from a suf- (Colo.App.1983) P.2d 43 denied November legal wrong legal standing fers no bring and has no 1983). challenging an action municipal under ordinance.” adversely rights there is must establish system to when

television require- propriety of the 532. This uncertainty as to the affected Ordinance pres- however, mean, will operating authority Cortez does not that Heath- ment legality of Ordi- ently grant imposition er of fines or must risk property nance No. 532.” imprisonment or the loss adjudica- profession in secure the order to according to uncertainty, legal rights. CF & I tion of uncertain See Heather, triple dilemma.” creates “a Corp. Pollution v. Colorado Air Steel apply for a either Heather must Commission, 199 Control Colo. in violation which considers Court, v. District Johnson by pro charter, criminal offense commit a Colora- 576 P.2d televi ceeding a cable to install Optometric Examiners v. do Bd. State permit, or discontin system sion without a Dixon, pursue. organized to ue it was the business circumstances, Heather main Under Dixon, optometrists chal- several tains, to resolve di the method chosen regulation lenged legality of a board declaratory lemma, namely filing applied yet had to them. been action, appropriate. We plaintiffs had We determined that agree. since, view, standing, they should required challenged not be violate 13-51-106 of the Uniform regulation in order to obtain a declaration Declaratory Judgments Law describes who *5 validity invalidity. Similarly, in declaratory judgment. of its obtain Johnson, “Any rights, servicing company an oil-well person ... whose sta states: zoning tus, by challenged legality of a local legal are affected the or other relations ordinance, statute, contract, required the municipal regulation any ques permits. plaintiff ar- may have obtain numerous The determined validity arising gued submitting un that it faced the choice of tion of construction or ordinance, instrument, statute, “illegal” permit procedure or discon- der con an the the tract, tinuing operations. its We reaffirmed or franchise and obtain a declaration status, and held that “the threat legal principle or other relations Dixon rights, irreparable purpose loss” to of this statute an immediate thereunder.”6 uncertainty company justified relief from the the issuance of is to afford surrounding legal preliminary injunction preserve the sta- legal rights and rela tions; quo pending in final determination of the it is remedial nature and should be tus declaratory liberally judgment action. construed and administered. Col merits reasoning find in Optometric Board Exam We Dixon John- orado State Dixon, in case. persuasive 440 P.2d 287 iners v. son Charity, Silverstein v. Sisters of Ultimately, though, the of Heath- issue Colo.App. 559 P.2d 716 sec analyzed standing must under the er’s 13-51-102, C.R.S.1973; 57(k). C.R.C.P. two-pronged adopted by this court in test recognize declaratory Wimberly Ettenberg, We that a questions an resolve judgment action must be based on actu P.2d 535 To (1) standing, controversy. v. Board we must determine whether al Beacom Commissioners, fact, plaintiff injury has suffered (2) by (Colo.1983); advanced Farmers Elevator Co. First whether interest Bank, protected plaintiff legally 489 P.2d law. In the National action, standing, declaratory judgment To have Heather context of a 57(b) language 5. that as result 6. C.R.C.P. contains the same Heather also contends illegal permit, city's authorization of the CTI has section 13-51-106. gained advantage an economic over it unfair respect providing cable with television ser- vice to Cortez residents. prong the first indicates whether the plaintiff.” (emphasis fact’ added in affected”; “adversely has Corp.). been second CF & Steel prong right. establishes existence prong second the test asks Furthermore, “a decision on merits is whether Heather has an interest or inextricably always every tied to case protected by argue law. CTI and Cortez standing. which involves issue of allegations injury Heather’s issue, standing ques- When the broad simply complaints of injury economic due plaintiff tion is whether the stated competition.7 to lawful disagree. claim relief which should be entertained allegations, These which were admitted in the context of a trial on the merits.” Id. petitioners as true at 570 P.2d summary cross-motions for judgment, Applying Wimberly test Heather’s raise serious issues as to what constitutes complaint, second amended we conclude proper operating authority for a cable that Heather has stated a claim relief system television By bringing Cortez. appropriate and that was for the district declaratory action, Heather court to consider Heather’s claim on its legal seeks to its clarify position light opinion, merits. Heather has dem- Ordinance 532 city’s proce and the affected, injured, by that it onstrated dure. These significantly matters affect First, complaint Ordinance 532. al- operations Heather’s business as well as its leged Ordinance 532 and in conducting operations interest those procedure incorporated in the ordinance are lawful manner. view, they unlawful. Heather’s reflect Under Colorado Corporation attempt by council to accom- Code, seq., section 7-1-101 et C.R.S.1973 plish long-term installation of coaxial (1973 Supp.), and 1983 Heather has the cable on the streets of Cortez means business, on carry “conduct other than the aof franchise. operations,” and “have and exercise all Second, by refusing request Heather’s powers necessary or convenient to effect election, participate a franchise *6 purposes corpora for which the practically forcing is to apply Heather a organized.” 3—101(l)(j) tion 7— which it considers to inbe violation (s), Clearly, municipality and C.R.S.1973. a city Third, charter. if it applies even may unlawfully a deny granted permit, and a Heather would right to do business. We conclude there be exposing itself to economic risk if in the standing fore that Heather has because it future some court that a determines fran- injury legally pro has an established required. allegations sug- chise is These conducting tected interest in a business gest that Heather’s participa- reasonable lawful manner. Its concerns about ac tion in the cable television business is effec- City tions the Cortez Council in the tively precluded by Ordinance 532. Such permit-franchise issue well suited to view, preclusion, in injury our establishes pursuant resolution to section 13-51-106. in fact in this As case. we stated CF & Colo, Corp., 279, Steel 199 at 610 at P.2d Colo, III. 92 (quoting Wimberly, 194 at 538): at 570 P.2d proper inquiry to The substantive issue this case is “[T]he injury be made as to in fact require- grants whether Ordinance 532 or complained ment is ‘whether the argues action a franchise to CTI. CTI that article injury has caused or in X the threatens to cause Cortez Charter “establishes that, recognize general, injury 7. We KAKE-TV economic 567 383 Radio, Wichita, competition from lawful does not confer stand Inc. v. 213 Kan. challenge legality competitor’s Broadcasting, Hubbard Inc. Club, operations. See Kennel v. Inc. City Albuquerque, Cloverleaf v. 82 N.M. 477 P.2d Commission, Racing Colorado P.2d 1051 Inc., 1980); (Colo. Liquors, v. Perl Mack Kornfeld street, al- whereby indi- “No franchise methods two alternative place the said ley or to use or vidual be upon the county granted except shall be alleys.... Sec- occupy public streets electors, qualified taxpaying vote of the grant a fran- authorizes tion ... being granted question of its and the electorate, taxpaying by vote of chise upon such vote shall be submitted to the Cortez 8 allows ... Section while expense deposit with the treasurer we ac- permits.”8 While Council applicant submission assertion, accuracy of this knowledge the franchise.” for said unresponsive question it also find we give paragraph was to of this If, court conclud- us. district before taxpaying electors of Denver absolute pub- ed, attempted to evade granting control of franchises.9 over by requirement of section lic election Co., Eastern Railroad Ward Colorado under the granting a franchise CTI (1912), aff'd, Colo.App. 125 P. permit, then Ordi- guise P. and must be struck nance "532 is unlawful McGinnity & In McPhee Co. Union analysis what con- down. Based on Co., (8th 158 F. 5 Cir. Railroad on that of other stitutes Pacific 1907), pro- Eighth analyzed Circuit two televi- jurisdictions in of cable the context Charter, one visions the new Denver sion, conclude that Ordinance we tracking dealing with franchises without a vote of franchise CTI XX, sec- language of article constitutional electors of Cortez. dealing with revocable other con- permits. It outlined the factors A. determining whether the sidered of what consti- discussion earliest only per- privilege is a franchise or appears in Bank Au- tutes franchise mit: Pet.) 519, (13 Earle, gusta v. U.S. “A case, (1839). In that the United L.Ed. 274 sovereignty to one a fran- Supreme Court described States parties more to do some act or acts conferred “special chise aas perform without they could not individuals, and which government upon power.” sovereign Bank grant from the belong the citizens of Earle, 13 Pet. 595 Augusta do[es] [10 of L.Ed. right.” Id. country, generally, of common .... 274] (13 Pet.) adopted the Earle not, however, privilege or every “It is definition see Denver Swansea granted by permission state City Railway Railway Co. v. Denver rivers, occupy highways, toor *7 (1875), applied 2 few cases Colo. 673 dignity to the of a or streets that rises XX, sec- that definition until after article granted city a privilege by A franchise. 4 to Colorado Constitu- private occupy tion was added use a a to or to 4 and temporarily tion in 1902. Section created a portion of street County its resi- of Denver and authorized a license and not a franchise. The is fran- charter. The line of demarcation between enact a home-rule exact dents to clearly 4 chises and licenses not be paragraph stated: last of section 2, above, explained supra provides 9. As we see note arti- be “[n]o 8. Section 1 shall XX, except upon taxpaying granted of -cle section 4 of the Colorado Constitution is provides Council by Section 8 applicable “[t]he electors.” to all home-rule cities virtue of tempo- may grant permit 6, a for the time part: which article section street, alley, rary occupation or or use “[Pjroceedings the charter of each home- [under permit provided be public place, shall rev- such city] conformity with rule shall be reasonable by pleasure, whether ocable the council at Meanwhile, article.” sections 4 5 expressly right to be reserved in such revoke powers city “shall have the each and its citizens permit not.” Neither “franchise" nor such or 1, and 5 of this article.” set out in sections 4 city "permit" is defined charter. drawn, general but their characters and defendant the rights which the clearly- are well limits so known so purports give. ordinance to To uphold that it not established is difficult as- such an approve ordinance palpa- a sign many rights granted to the class to attempt ble provision to evade a of arti- they belong. which cle XX of the state Constitution. right privilege “A which or is essential provision “If the charter for revocable performance general func- permits authorizes the grant council to purpose or grantee, tion and which permits, franchises, which are in effect can sovereignty is and provisions such invalid as contra- alone, right privilege such or as vention the Constitution.” corporation operate ordinary an or 242-43, Id. at P. at 849. See also railroad, railroad, commercial a street v. City County Denver, Berman gasworks, or city waterworks col- (1949) (license- Colo. P.2d therefor, tolls a lect franchise.... permit trolleys along buses and right privilege “A or not essential to Denver attempt” streets was “abortive purpose function or by city council to a franchise without grantee, and of a nature that a electors). a taxpaying vote of the private party might grant right a like or privilege upon property, his such as a years, although In recent we have temporary permission or revocable to oc- not permit-franchise addressed the issue in cupy portion a use of some television,10 context we have street, ground, highway, or is a license our continuing acceptance indicated of the not a franchise.” basic definition special of “franchise” as “a Id. at 10. right government granted by to an individual or guide- followed McPhee —such does ordinarily belong citi Co., lines in Baker v. Denver Tramway general.” zens in Englewood case, Colo. 210 P. 845 In that Telephone Mountain States & passed Telegraph Denver City Council an ordi- P.2d nance construc- railway. upheld per We have street The court decided also various which, opinion, that the ordinance was unlawful it mits or because contracts did actually granted a dignity franchise without vote “rise franchise.” See, We electors. stated: e.g., Ginsberg (1968) it “If be a it cannot be taken (user agreement

out for stadium not a fran constitutional inhibition calling chise); Estes, Finney a license. That (1954) the streets of the (permit city garbage for street railroads P.2d 638 open franchise). a franchise matter not collection not a con now If, kind, dispute. of this clude that Ordinance 532 created a fran [rights council can chise. By adopting Ordinance the Cor franchise], it wholly amount to a can ... special right tez Council CTI people defeat streets, who alleys, placed the restrictions as franchises in public places multiple ten- *8 the Constitution.... year periods. right is privilege or gen the opinion city performance

“We of that the essential the of CTI’s authority grant purpose. belong council had no eral business does not Telephone alleys] In In re Mountain its the States cable on streets and should be in 10. 161, (Colo.P.U.C. Telegraph license-permit. 73 P.U.R.3d 171 a If form of franchise or a a 1968), the Colorado Public Commission Utilities anytown required, is franchise then if is a suggested legal question probably exists “[a] city, may question home-rule the have to be permission granted by any- as to whether the people." submitted to a vote of the Colorado, [, placing town for the of coaxial 338 by elections could be avoided citizens and can be con- a labelling grant the “license”: by government.

ferred Under cir- cumstances, rights we are that Ordi- grant by satisfied a munic- “Whether a franchise, grant a than a a fran- corporation nance rather is the ipal license, depend upon the status of limited to CTI. chise does not grantee upon the nature of the rights'granted_ B. by person, a to a grant city “The firm jurisdictions have confronted the Other right a of the to construct permit-franchise issue in the context ca- towers, cables, poles, city-wide system of exception, ble television. Almost without wires, in, along apparatus and other held that cable television these courts have public ways its streets and other over granting a for the of a proper subject is operate systems prof- for the and to authority persuasive franchise. The most clearly a grantee it of Supreme North Carolina comes from the right grant by a not it is the held Court, city char- in 1967 that decided persons and which all common provisions franchise elections governing ter granted only the act of the sover- must before cable television be followed eign .... v. systems can be constructed. Shaw rights which the “We conclude that the 90, Asheville, City 269 N.C. 152 S.E.2d attempted grant ... constitute a city City (1967), Asheville en- Council franchise, notwithstanding fact Agreement” into a “Lease-License tered [agreement] them ‘li- denominates installation, construction, mainte- therefore, is, void be- cense.’ nance, operation a cable television required by ... proceeding cause the Supreme system. The North Carolina city granting charter for the fran- agreement that the awarded Court decided chise has not been followed.” required a franchise without 161-62, at Id. at 152 S.E.2d 190. See also taxpaying electors. “The fact Top v. Cable City Owensboro Vision agreement parties denominated (Ky.App.1972), Kentucky, 487 S.W.2d Co. of Agreement’ is control- ‘Lease-License not denied, 948, 93 411 U.S. S.Ct. rt. ce 1926, nature, ling,” explained. the court not “Its (1973) right (the 36 L.Ed.2d 410 title, city power determines system city-wide cable television 97, at enter into it.” at 152 S.E.2d 144. Id. subject granting proper right granted right was not a Because franchise); Corp. v. People’s Cable general citizenry, possessed Rochester, 70 Misc.2d 334 N.Y.S.2d agreement court held that the undertook (decision (1972) concerning cable televi follows,” the court a franchise. “It provisions city sion is within franchise concluded, agreement “that the charter; ordinance nonexclusive procedures adopted by been which are invalid); Borough license is of Scottdale prescribed by the charter as conditions Corp., 28 Pa. Television National Cable validity. agreement precedent 2,n. 368 A.2d Commw. therefore, is, authority of beyond the (1977) (grant n. 2 to use and is void.” Id. at 152 S.E.2d system is ways to construct cable television franchise); Service, Aberdeen Cable TV Raleigh, In Kornegay Aberdeen, 85 S.D. Inc. (1967), Raleigh N.C. S.E.2d (1970), denied, 400 U.S. N.W.2d cert. “license, special (1971) entered into a Council S.Ct. 27 L.Ed.2d 439 pas- (ordinance without the franchise” granting right construct sage system clearly and without a vote of ordinance cable television fran private corpora again, upon electors. Once chise as confers Supreme which does not North Carolina Court tion a *9 govern- belong general citizenry); City persuaded provisions charter Service, Inc., plated Tyler v. Television Cable such a of interests.” Sony calculus (ordinance (Tex.Civ.App.1973) S.W.2d 322 Corporation City America v. Universal — streets, granting permit alleys, Studios, Inc., U.S. -, -, 104 S.Ct. public ways system for cable television was 774, 783, (1984). 78 L.Ed.2d This is franchise). in fact applied sound advice which should be in the appeal, especially resolution of this where supports

Each of these cases our conclu- imposition requirement voting in grants a sion that Ordinance 532 franchise public this situation would serve little pur to CTI. pose. C. When construing a provi- constitutional The Cortez Council enacted Ordi- give sion court should effect the intent taxpaying

nance without a vote of the adopters at the time the amendment electors. Since to use streets adopted. was In re Interrogatories Pro- construct, ways public pounded by Concerning Senate House operate, and maintain a cable television Bill 189 Colo. 536 P.2d 308 system proper subject granting Spurlin, Board Education v. procedure was unlawful. § X, Article 1 of hold, therefore, that Ordinance 532 vio- (“No the Cortez Charter XX, lates article section of the Colorado granted except upon shall be vote X, Constitution and article section of the electors....”)1 tracks the Cortez Charter. §XX, language of Article Colora- judgment appeals of the court of Constitution, do added November affirmed. part: in street, alley No franchise

DUBOFSKY, J., dissents. public place city] home rule shall [a DUBOFSKY, Justice, dissenting: granted except upon the vote of qualified taxpaying electors.... I I respectfully dissent. Because believe §X, that the framers of Article 1 of the It is difficult to determine the intent of the §XX, 4 adopters Charter and of Article I believe that language apply only of the Colorado Constitution could not have above intended to require grants public intended the electorate of street franchises to utilities, before cable television and that cable television is not a streets, public I public utility. would ap- reverse the court of intent, determine first To court should peals. grants may While such be labeled examine the words the constitution used franchises, requirement the vote believe popular and determine their natural and apply was intended meaning. A-B Cattle Co. United franchises to utilities. States, Recently Noland, Supreme the United States Prior P. 729 Court, upon considering application The word “franchise” various Copyright videotaping meanings, legal Act to home and popular both copyrighted programs, McQuillin, “In Municipal Corpo- stated: a case sense. E. § (3rd circumspect 1970). we majori- like this ... must be 34.04 rations ed. construing scope rights aby ty special right created defines “franchise” as “a legislative privilege granted government enactment aby which never eontem- to an require X Article of the charter is entitled Franchises intended to a vote when the constitution Utilities, event, implying require and Public 1 of Article charter can not § does. applies only provision X than franchises interpretation less the constitutional authoriz- charter, therefore, utilities. Another charter the intent of the large adopters adopting since 4§ section it tracks to a extent Article is control- ling language provision, constitutional this case. *10 properly held term as courts have right corporation individual or —such in to citizens to ordinarily belong applicable right to be to does not disagree with maintain, I do general.” construct, While not rail- and definition, find it little as this public highways, and roads in streets controversy. in present use Govern- works, gas or water mains and water rights privileges many and ments works, poles and pipes lighting and and in ordinarily belong to citizens do wires for the transmission and distribu- right to general. Attorneys given are electricity. tion of law, given the physicians are practice and (footnotes (emphasis original) in omit- Id. govern- practice medicine. Local ted). point, Dillon refers At one of build- approve ments the construction §XX, 4 portion Article relevant newspapers from ings to be sold and allow in a footnote follow- Colorado Constitution Clearly, public Cor- stands on sidewalks. sentence: required every such tez is not to submit in have embodied Other States ... also approval. for grant to its citizens provisions requiring their Constitutions insight XX no into Article to the the consent the local authorities “franchise,” for the word meaning intended highways, only for use of streets and therefore, necessary to else- it is look and purposes, instances railroad some In its for a definition. strictest where public utility. for form of sense, right granted a franchise is § corpora- to act as a at the state to individuals Id. § McQuillin, supra, 12 E. 34.04. tion. relates The notion a street franchise 4, however, pertains public more utilities contained relating granting of franchises McQuillin’s literature. work on recent street, alley public place commonly or — chapter municipal corporations one is enti- To called street franchises. determine Using the tled: “The Franchise of Persons adopters by the what was intended Streets, Its is intro- Incidents.” usage it is to examine the useful paragraphs: duced with these by contemporaries made

term “franchise” relating law chapter embraces the adopters. companies, grants individuals published John Forest Dillon streets, in- partnerships use municipal fifth of his treatise on edition rights growing cludes the and duties out work corporations. Included in his water, of streets to of the use chapter He entitled “Street Franchises.” heat, conduit, light, gas, power, electric "fran- chapter by defining introduces rail- telegraph, telephone, commercial high- public chises use streets and etc., way, railway, companies com- street “rights public ways” as streets which monly compa- public known as service public pur- furtherance of nies .... Dillon, Municipal poses.” Cor- J. Law of The law to the use of streets § 1911). (5th “The es- porations ed. purposes in the for men- manner and a franchise sential element of great practical importance tioned is right, privilege, power should be a because of immense sums invested right, as the individual cannot exercise public companies service intimate depends for lawful existence and which the welfare of the connection between government, upon grant from the municipality inhabitants of the foundation of from the State and ordi- enactment wise statutes every an individual or privilege or nances franchises to ser- pub- streets for companies for vice the streets quasi-public purposes lic or individual pipes, gas pipes, water conduits for proceeds to define cor- profit.” Id. Dillon wires, telegraph telephone poles, pur- porations quasi-public light poles, poles, the poses public utilities. He summarizes: electric streetcar *11 mining privilege granted tracks commercial railroads and whether or not a railroads, street and also the control and privilege franchise. “A they regulation companies after granted temporarily ... for the construc- upon once have entered the use of building upon lot, of a abutting an of a franchise. streets virtue stand, stand, apple a cab or for § McQuillin, 12 supra E. 34.01. The similar purpose commercial is a license and these discussion found in treatises convinc- not franchise.” Id. at 10. The McPhee es me that when the term “franchise” as it also right court asserted that a public by the relates to streets was used general “not essential to the function or §XX, framers of Article 4 of the Colorado purpose grantee a license and apply it meant Constitution was to not a The franchise.” Id. held public franchises utilities. lay railroad lines was not es- addition, majori In the cases cited general sential to Union Pacific’s purpose ty opinion support this conclusion.2 Bank operate because it could with- business Earle, (13 Pet.) v. 38 Augusta U.S. of 10 using particular out street under the (1839) 274 did not discuss street L.Ed. authorization applied It the traditional con franchises. state. franchise, cept of a to exist as a instructive to note a cable tele- corporation. v.Ward Colorado East vision conduct its business Co., Colo.App. 22 P. ern Railroad 125 per- without the (1912), a franchise or a summarily aff'd, 567 (1915), Technology permits mit.3 appeals 149 P. 1193 the court of cable television por held that the of the relevant plug telephone into lines and transmit its §XX, give 4 tion of Article was to absolute wires, signals existing over avoiding thus control over the franchises permit. the need for a or a See taxpaying electors. Berman v. Comtel, Inc., York New 57 209 Misc.2d 293 N.Y.S.2d Re (1949), P.2d 754 this court characterized Telephone the Mountain States & “that holding Ward as after effective Telegraph Company, 73 P.U.R.3d regu power date of said article (Colo.P.U.C.1968). commonly is not late utilities and their was rates transfer costly string done because it often less the city qualified red from council to the telephone than pay wires municipali electors the new lines. ty.” at 760. The court in McPhee concluded that in time case closest to the amend- evil at which provision this constitutional McGinnity ment is McPhee Co. v. Union power was directed was the “the (8th F. 5 Railroad Cir. Pacific commonly general privilege called ‘fran- 1907). recognized adop- McPhee that the chise,’ frequently granted by cities to in- ters of the amendment could not have companies, water, railway gas, street elec- privileges public all tended that light, telephone public utility tric and other electorate, streets voted on corporations approving ... without permission granted to held that a commer- the electors ... because there was lay cial railroad railroad danger disregard public more of a upon across or a short distance franchise, interests of these franchis- street is but license or [from permit. Estes, The court cited factors for deter- 158 F. at 12. In Finney es].” majority recognizes every grant points out that not that a franchise is sometimes called a McQuillin, permit. supra, of a to use street rises to the level 12 E. at § 34.01. fully explore the but does not meaning intended constitutional use of argument, oral 3. At counsel for CTI asserted majority be- "franchise.” The draws its line governments usually grant local tele- franchises, permits McQuillin permits tween companies vision revocable at will. (1982), (1954), Supreme United States P.2d 638 ordi- the conclusion in McPhee: Court held moratorium that Boulder’s court reiterated expansion of nance on the cable television ordinarily ... term franchise [T]he [is] scrutiny exempt from antitrust well- accepted being applicable to the of Par- immunity under the state doctrine are deemed known services which Brown, ker 63 S.Ct. U.S. utilities. L.Ed. P.2d at 640. *12 Furthermore, television is a broad cable term These cases establish Requiring original programming. caster apply public “franchise” was intended election, company, the cable paid logic be- They point out the utilities. also § a franchise restricts before people 4: the knew hind Article company’s right speak. cable television powers and public monopoly utilities have A is that a first amendment rule protect against basic way themselves regulation speech must examined on be monopolies these control their use can be McQuillin governmental “The see if the interest of the streets. writes: mo- nearly all the means restrictive of first nopoly idea is the basis of served less v. Int’l See Heffron public rights. ser- law franchises amendment Consciousness, Inc., supra, McQuillin, Society E. Krishna companies.” vice § only logical 640, 101 2559, ration- 34.01. This is the 69 L.Ed.2d U.S. S.Ct. 288, Alabama, v. requirement. (1981); the vote NAACP ale behind 377 U.S. Shel 12 L.Ed.2d 325 S.Ct. has been established that “fran- Once it Tucker, v. ton 364 U.S. 81 S.Ct. only applies chise” under constitution L.Ed.2d 231 utilities, question is public the next public utility. television is a whether cable I For these reasons would reverse agree holding that it with those decisions appeals. judgment of the court Fremont, City v. is not. See Greater Inc. Fremont, (N.D.Ohio F.Supp. Telephone 1968); Re the Mountain States City Telegraph supra; v. White Arbor,

Ann 406 Mich. 281 N.W.2d 283 (1979); Issaquah Teleprompter Corp., Wash.2d Annot., A.L.R.3d Cable enterprise; a commercial television is BUTCHER, Petitioner-Appellant, Louis termination of not an essential service the could threaten the welfare. CALDWELL, Safety Manager demonstrates, signifi- Elvin R. there is As this case Excise, and Sheriff of among television Ex-Officio competition cant Denver, County companies. Monopolies not occur un- will Patterson, Wayne companies are treated K. Warden of the Jail less cable television Requiring a vote before utilities. State Colorado, Respondents-Appellees. granting each new cable television fran- in a chise in effect result would No. 83SA315. monopoly status. Colorado, Supreme Court briefly implica- some I also comment on En Banc. opinion. majority A re- tions competition by quiring a election between March companies may subjecting various cable Communi- itself antitrust sanctions. Boul- ty Communications Co.

der, S.Ct. 70 L.Ed.2d U.S.