No Guaranteed Rights to Service Apartments : Cox Cable Loses Access Case in Appellate Court

Times Staff Writer

In a decision that could strengthen the hand of satellite television systems and other alternative program providers, a state appellate court has ruled that cable television companies have no constitutionally guaranteed right of access to apartment buildings.

Cox Cable San Diego had asked the 4th District Court of Appeal to rule that its free speech rights under the First Amendment were violated last year when the owner of a Chula Vista apartment complex installed a satellite television system and ordered Cox's cable hook-ups removed from 150 apartments.

But the court, in an opinion issued Friday, said that the apartment owner's property rights prevailed over any free speech rights the cable system could assert. Guaranteeing Cox the right to permanently install cable equipment on private property, the appellate judges said, would allow it to take a landlord's property without compensation.

The decision--the first in the area by a California appellate court--could help set the ground rules for the increasingly heated competition between local cable television franchise holders and their non-cable competitors, according to lawyers and cable industry experts.

"Wrapped in the guise of a First Amendment question is a very powerful economic issue here, that has to do with the extent of cable television service that the cable franchisee can control," said attorney Darvy Cohan, who represents the owner of the Woodlawn Garden Apartments in Chula Vista and Ultronics Inc., the La Mesa satellite television firm that displaced Cox from the apartments. "There's a significant amount of dollars involved in that."

Decision Upheld

Cox General Manager Bob McRunn was out of the city and could not be reached for comment. The company's attorney, Christopher Britton, declined to answer questions about the case. Cox Cable San Diego, the nation's largest cable system, serves customers in San Diego, Chula Vista and six other cities in San Diego County.

The appellate decision upheld the refusal last year by San Diego County Superior Court Judge Milton Milkes to issue an injunction barring Woodlawn's owner, Henry Bookspan, from replacing Cox's traditional cable service with Ultronics' satellite master antenna television system.

Cox argued that cable systems were entitled to the same constitutional protections provided to newspapers. If news carriers have the right to enter an apartment complex to deliver the paper, the cable company's lawyers said, then Cox and other cable providers have a right to install the equipment that allows them to transmit television broadcasts into apartment units.

But the court, in a unanimous decision written by Presiding Justice Daniel Kremer, said the installation of cable equipment was a more permanent and intrusive use of a landlord's property than the brief visit of a news carrier.

Analogy Made

"Cox's requested right of access here is analogous to a publisher seeking a right to cut slots in apartment doors so it can deliver its newspapers directly," Kremer wrote. "The First Amendment has yet to be extended so far."

The decision--which can be appealed to the California Supreme Court--could clear the way for greater competitiveness in providing television service not only to apartment buildings but also to condominium complexes, planned developments and other locations where a single provider can easily serve a large number of households, Cohan said.

"It's definitely a big issue," said Thomas Hunt, president of SelecTV, a Marina Del Rey firm that provides pay-television programming to 85,000 Los Angeles-area subscribers. "Cable television in urban markets in this country is faced with lots of competition from private cable, non-franchise, satellite-delivered systems."

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