259 Conn. 56

COX CABLE ADVISORY COUNCIL v. DEPARTMENT OF PUBLIC UTILITY CONTROL ET AL.

(SC 16538)

Sullivan, C. J., and Borden, Katz, Vertefeuille and Zarella, Js.

Argued September 13, 2001

officially released January 15, 2002

*57Edward G. Pizzella, for the appellant (plaintiff).

Robert L. Marconi, assistant attorney general, for the appellee (named defendant).

Burton B. Cohen, with whom, on the brief, was Sharon L. Codeanne, for the appellee (defendant Cox-Com Connecticut, Inc.).

Phyllis J. Trowbridge, with whom, on the brief, were Guy R. Mazza and Melissa Day, for the appellee (defendant office of consumer counsel).

Opinion

KATZ, J.

The dispositive issue in this appeal is whether the plaintiff, the Cox Cable Advisory Council (advisory council), may appeal from the decision of the defendant franchising authority, the department of public utility control (department), granting to the defendant CoxCom Connecticut, Inc., doing business as Cox Communications Connecticut/Manchester (Cox Cable), a renewal of its franchise. The advisory council appeals from the judgment of the trial court dismissing its appeal from the department’s decision to renew Cox Cable’s franchise.1 We determine that federal law pre*58empts parties other than the cable operator from appealing the renewal of a cable franchise and that, accordingly, the trial court’s dismissal of the action, albeit on different grounds, was proper.

The record contains the following undisputed facts relevant to this appeal. On April 7, 1998, Cox Cable filed with the department2 an application, pursuant to General Statutes §§ 16-331 and 16-333, and § 16-333-38 of the Regulations of Connecticut State Agencies, for renewal of its authorization to construct and operate a community antenna television system, pursuant to a franchise or certificate of public convenience and necessity, for the franchise area consisting of the towns of Glastonbury, Manchester, Newington, Rocky Hill, South Windsor and Wethersfield. In accordance with the detailed procedural road map set forth by the Cable Communications Policy Act of 1984 (Cable Act); 47 U.S.C. § 521 et seq.; and under Connecticut’s implementation of this process; see Regs., Conn. State Agencies §§ 16-333-38 (a), 16-333-40 (b); Cox Cable submitted the requisite information to the department. Thereafter, in accordance with General Statutes § 16-331 (d) (5), and §§ 16-333-38 (b) and 16-333-40 of the regulations, the department held a hearing at which it designated Cox Cable and the office of consumer counsel3 as parties *59to the proceeding. Additionally, the department designated the advisory council, established pursuant to § 16-333-24 et seq. of the Regulations of Connecticut State Agencies* **4 as the council to provide advice to the subject franchise area serviced by Cox Cable, as an intervenor pursuant to § 16-331 (c) (2). Following his request, the mayor of the town of Wethersfield was also granted intervenor status in the administrative proceedings.

Pursuant to § 16-331 (f), the department ordered a community needs assessment, the results of which were provided to the parties as well as the intervenors. Thereafter, Cox Cable submitted its proposal for renewal, which the department considered at several public hearings at which all the parties and the intervenors were afforded the opportunity to present evidence. A draft decision was issued, and the parties and the intervenors were afforded the opportunity to object. Specifically, the department invited all participants to file written exceptions to the draft decision and to notify the department of their intentions to present oral argument regarding the draft decision at a subsequent public hearing. After written objections were filed and oral arguments were presented, the department, on December 22, 1999, issued its final decision offering to renew Cox *60Cable’s franchise, subject to various terms and conditions. Following Cox Cable’s submission of a revised proposal for renewal that conformed with the department’s decision, Cox Cable and the department executed a final revised franchise agreement.

The advisory council appealed from the decision to the Superior Court, contending that it was aggrieved by the department’s decision renewing Cox Cable’s franchise because the decision violated the Uniform Administrative Procedures Act (UAPA).5 Cox Cable moved to dismiss the appeal, claiming that, because the question of aggrievement is essentially one of standing and thereby implicates the court’s subject matter jurisdiction, the advisory council’s failure to allege aggrievement deprived the trial court of jurisdiction to hear the appeal. Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 701, 780 A.2d 1 (2001) (noting basic principle of law that plaintiff must have standing for court to have jurisdiction). Cox Cable further claimed that the trial court lacked jurisdiction because the advisory council was preempted under federal law from bringing its appeal. Thereafter, the advisory council filed an amended appeal alleging additional facts in order to address the issue of aggrievement. The department then filed its own motion to dismiss based on the advisory council’s failure to establish aggrievement, and the court considered both motions together.

In reliance on Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), aff'd, 206 Conn. 374, 538 A.2d 202 (1988), the trial court determined that the amended appeal properly could not be considered by the court because the amendment had been filed after expiration of the forty-five day appeal period set *61forth in General Statutes § 4-183 (c).6 The trial court thereafter focused on the original appeal and concluded that the advisory council’s failure to allege facts showing aggrievement warranted dismissal of the appeal. Specifically, the court noted that the mere allegation by the advisory council that a section of the UAPA had not been followed was, in and of itself, insufficient to establish aggrievement. The trial court also noted that the reference in the amended appeal to the fact that the advisory council performs “functions customarily delegated to such councils by the statutes and regulations of the state of Connecticut” would not satisfy the jurisdictional requirement. Accordingly, the trial court dismissed the advisory council’s appeal without addressing Cox Cable’s jurisdictional challenge based on federal preemption.7 This appeal followed.

*62The advisory council makes three claims: (1) the present action is not preempted by the Cable Act; (2) the original appeal alleged sufficient facts to establish aggrievement; and (3) the amended appeal cured any deficiencies in the original appeal and should have been considered by the court. Cox Cable both defends the trial court’s decision on the issue of aggrievement and offers federal preemption as an alternate ground for affirmance.8 We agree with Cox Cable that federal law preempts parties other than the cable operator from appealing the renewal of a cable franchise and that, accordingly, the trial court’s dismissal of the action, albeit on different grounds, was proper.

Our resolution of the dispositive issue in this appeal, that is, whether the state trial court was divested of subject matter jurisdiction to entertain the action by the advisory council, a third party to the underlying franchise renewal application, is guided by the doctrine of federal preemption as disclosed by the application of the appropriate canons of statutory construction.

“The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent. . . . [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law ... or where the state law at issue conflicts with federal law, either because it is impossible to comply *63with both ... or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives .... Dowling v. Slotnik, 244 Conn. 781, 791, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).” (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 717, 771 A.2d 915 (2001).

Our resolution of this case is also guided by our statutory construction jurisprudence. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998). In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended. Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979); accord Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Finally, because the question presented [in] this appeal involves an issue of statutory construction, our review is plenary. E.g., Coley v. Camden Associates, Inc., 243 Conn. 311, 318, 702 A.2d 1180 (1997).” (Internal quotation marks omitted.) Schreck v. Stamford, 250 Conn. 592, 596-97, 737 A.2d 916 (1999); accord Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001).

Against this background, we begin with a brief history of the pertinent provisions of the governing legislation *64along with a discussion of the relative roles played by the governing authorities. We begin with the Cable Act, which amended the federal Communications Act of 1934, the purpose of which was to provide a federal framework that would encourage investment in cable television systems and technology on a national level. See 47 U.S.C. § 521.9 The Cable Act was enacted in order to “provide and delineate within Federal legislation the authority of Federal, state and local governments to regulate cable systems.” (Internal quotation marks omitted.) Cable Television Assn. of New York, Inc. v. Finneran, 954 F.2d 91, 97 (2d Cir. 1992). Particularly relevant to this appeal is the purpose behind the provision addressing franchise renewals, which is intended to “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 . . . .” (Emphasis added.) 47 U.S.C. § 521 (5). To implement these goals, the Cable Act sets forth a detailed scheme for renewal *65of cable franchises. See 47 U.S.C. § 546.10 Federal law *66both sets forth the terms and conditions with which a *67renewed franchise must comply; see, e.g., 47 U.S.C. § 552; as well as prohibits the conditioning of a renewed franchise upon other terms and conditions. See 47 U.S.C. § 541 (b) (3) (D). In 1985, in order to conform with federal law, General Statutes § 16-331 was amended to provide for renewals consistent with the Cable Act; Public Acts 1985, No. 85-509, § 6; and, in the present case, pursuant to § 16-331 (d) (5),11 the depart*68ment promulgated specific regulations pertaining to cable television franchise renewals. See Regs., Conn. State Agencies § 16-333-38.12

For the purposes of the present case, there are three key federal provisions. The first is 47 U.S.C. § 546, specifically, subsection (e) (1), which sets forth the express *69provision for judicial review: “Any cable operator whose proposal for renewal has been denied by a final decision of a franchising authority made pursuant to this section, or has been adversely affected by a failure of the franchising authority to act in accordance with the procedural requirements of this section, may appeal such final decision or failure pursuant to the provisions of section 555 of this title.” (Emphasis added.) See footnote 10 of this opinion. The second provision is 47 U.S.C. § 555 (a),13 which provides in part, with regal’d to an action to review determinations by franchising authorities: “Any cable operator adversely affected by any final determination made by a franchising authority under section 541 (a) (1), 545 or 546 of this title may commence an action within 120 days after receiving notice of such determination ... in [either] (1) the district court of the United States for any judicial district *70in which the cable system is located; or (2) in any State court of general jurisdiction having jurisdiction over the parties.” (Emphasis added.) Because these provisions expressly identify only the incumbent cable operator as the party able to obtain judicial review of a decision of a franchising authority, we conclude that, in light of the third key provision, 47 U.S.C. § 556 (c),14 which provides in part that “any provision of law of any State . . . which is inconsistent with this chapter shall be deemed preempted and superseded,” no other party may appeal such a decision.

Our determination rests, however, on more than that delineation. We note that the provisions related to a renewal franchise, in specific, 47 U.S.C. § 546 (e) (1) and (2) and 47 U.S.C. § 555, allow for judicial review of a decision or action in a franchise renewal in only three instances, none of which expressly pertains to the advisory council. A cable operator may appeal a decision when (1) it has been affected adversely by a franchising authority’s failure to comply with the proce*71dural requirements of 47 U.S.C. § 546, (2) when its proposal for renewal has been denied, or (3) when its proposal has been granted subject to specified conditions that the operator refuses to accept.

Although those provisions do not expressly prohibit any other party from appealing the department’s decision, the legislative history supports this limited reading of the Cable Act. A report prepared by the House Committee on Energy and Commerce provides: “A cable operator adversely affected by a franchising authority’s failure to comply at any time with the procedural requirements of this section or whose proposal for renewal is denied may appeal to state court or to the U.S. District Court under the provisions of section 636. If a franchising authority grants renewal but subject to specified conditions which the operator refuses to accept, the operator may appeal that decision as if it were a denial.” House Committee on Energy and Commerce, Cable Franchise Policy and Communications Act of 1984, H.R. Rep. No. 98-934, p. 75 (1984) (House Report); see Cable Investments, Inc. v. Woolley, 867 F.2d 151, 155 (3d Cir. 1989) (referring to House Report as “the principal source of legislative history on the Cable Act”). More important, for purposes of this appeal, the House Report expressly explains that where the “incumbent [cable operator] is granted renewal pursuant to his proposal, there is no right of appeal by any other party.”15 (Emphasis added.) H.R. Rep. No. 98-934, p. 75.

*72Furthermore, we note that when Congress has intended to provide rights to third parties, it specifically has done so. Compare 47 U.S.C. § 546 with 47 U.S.C. § 532 (d) (person aggrieved by cable operator’s refusal to make channel capacity available may sue in federal court), 47 U.S.C. § 553 (any person harmed by unauthorized interception of cable service may bring civil action), and 47 U.S.C. § 551 (subscriber has private right of action for violation of privacy). “Congress for reasons of its own decided upon the method for the protection of the ‘right’ which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end. ... In such a case the specification of one remedy normally excludes another.” (Citation omitted.) Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S. Ct. 95, 88 L. Ed. 61 (1943); see Touche Ross & Co. v. Redington, 442 U.S. 560, 572, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979) (express availability of certain private actions establishes that, “when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly”).

In view of Congress’ clear intent to limit the parties and circumstances under which review may be sought, we are hard pressed to conclude that there is otherwise an inherent right to appeal the terms and conditions of a franchise renewal in contravention of the intent to the contrary. Indeed, preemption jurisprudence forbids such a conclusion Cable Television Assn. of New York, Inc. v. Finneran, supra, 954 F.2d 98; see Westmarc Communications, Inc. v. Dept. of Public Utility Control, United States District Court, Docket No. CVH89631, 1990 U.S. Dist. LEXIS 20080 (D. Conn. May 4, 1990) (attempt to prohibit cable operators from factoring into basic service rates civil penalty imposed by department preempted by provisions prohibiting regulation of cable systems as utilities); Time Warner Entertainment Co. *73v. Briggs, United States District Court, Docket No. CV92-40117-GN, 1993 U.S. Dist. LEXIS 1196 (E.D. Mass. January 14, 1993) (town bylaws requiring appointment of arbitrator when cable operator and local franchising authority are unable to agree on amendment provisions to franchise preempted by 47 U.S.C. §§ 545 [b] and 555 permitting operator to seek judicial review when request for modification of franchise has been denied); MediaOne Group, Inc. v. Henrico, 97 F. Sup. 2d 712, 713 (E.D. Va. 2000), aff'd, 257 F.3d 356 (4th Cir. 2001) (requirement for franchise renewal that cable operator provide its cable modem platform facility to any internet service provider preempted by 47 U.S.C. § 541 [C] [3] [D], which prohibits local franchising authority from requiring cable operators to provide telecommunication facilities as condition of franchise renewal).

The advisory council suggests that a determination by this court that it is preempted from pursuing this appeal “would be tantamount to a holding that the [sjtate of Connecticut and the [department, its designated regulatory authority, are powerless to establish the procedures for cable franchise renewal.” We first note that nothing in this opinion undermines the legitimate reliance on the department as the state agency authorized to regulate and supervise cable operators requesting renewal of their franchises to hold hearings on the relevant issues and to make determinations regarding whether the operator is qualified to have its franchise renewed. Moreover, it is the right of the advisory council to appeal the renewal that is at issue in this case, not the authority of the department. Because the advisory council has no regulatory authority over Cox Cable,16 our determination that it is preempted from *74appealing the department’s decision regarding Cox Cable’s franchise renewal has no impact on the congressionally mandated regime of local authority over the cable franchising process.

Underlying the advisoiy council’s argument is, essentially, the view that its role is tantamount to a second office of consumer counsel, with the power to enforce its advice against the department and local franchises, despite any such grant of authority from the legislature. We disagree with the advisory council’s characterization of its role. The advisory council’s argument, however, does implicate the question of whether the office of consumer counsel may appeal a franchise renewal by the department. That question, although not directly raised in this appeal; see footnote 7 of this opinion; is part of the dispositive issue before this court, that is, whether Cox Cable is the only party able to seek judicial review in this case. On the basis of the legislative intent expressed in 47 U.S.C. §§ 546 and 555, we conclude that General Statutes § 16-2a—the provision of state law that otherwise permits the office of consumer counsel to obtain judicial review—is inconsistent with the scheme set forth in the Cable Act and, therefore, is expressly preempted. See 47 U.S.C. § 556 (c).

We recognize that the office of consumer counsel is designated as “the advocate for consumer interests in all matters which may affect Connecticut consumers with respect to public service companies . . . .” General Statutes § 16-2a (a). Additionally, we appreciate that, whereas there is no statute giving the advisory council the authority to appeal a decision by the department, § 16-2a generally empowers the office of consumer counsel to appeal department decisions to the court. See footnote 3 of this opinion. Such state legisla*75tion cannot, however, control because, for the reasons we have already articulated, it conflicts with the clear federal legislative intent to restrict the right to seek review to the cable operator. Barbieri v. United Technologies Corp., supra, 255 Conn. 717.

The judgment is affirmed.

In this opinion the other justices concurred.

Council v. Department of Public Utility Control
259 Conn. 56

Case Details

Name
Council v. Department of Public Utility Control
Decision Date
Jan 15, 2002
Citations

259 Conn. 56

Jurisdiction
Connecticut

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