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Hastings Communications and Entertainment Law Journal

Authors

Philip Kantor

Abstract

This article reviews the attempts by cable television operators to access easements in order to provide their service to television watchers. Cable operators first attempted to use state common law of apportionment in order to access utility easements. In order to argue that an easement could be apportioned, the operator needed to show that the easement was compatible for cable use and that use would not place an additional burden on the servient estate. Many courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or compensating the owner of, the servient estate.

In 1984, Congress enacted the federal Cable Communications Policy Act of 1984. One particular section of the 1984 Cable Act, 47 U.S.C. section 541(a)(2), provides: "Any franchise shall be construed to authorize the construction of a cable television system over public rights-of-way, and through easements which is [are] within the area to be served and which have been dedicated for compatible uses .. " This article reviews the split among the federal courts in interpreting how far a cable operator can utilize section 541(a)(2) in gaining access to easements. The difference among the federal courts has been the interpretation of the word "dedicated," and whether to use the Black's law Dictionary definition or the common usage of the word. Finally, this article looks at three decisions of the Eleventh Circuit Court of Appeals on the issue, and the confusion that has occurred as a result of its latest decision.

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