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Dolan v. United Cable Television Corp.

OPINION FILED APRIL 9, 1981.

CHARLES M. DOLAN ET AL., PLAINTIFFS-APPELLEES,

v.

UNITED CABLE TELEVISION CORPORATION, DEFENDANT. — (THE CITY OF BURBANK ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 29, 1981.

The case before us is an interlocutory appeal from a preliminary injunction entered in favor of plaintiffs, Charles M. Dolan and Communications Management Corporation, as general partners in Cablevision of Chicago, a limited partnership, and against United Cable Television Corporation and the city of Burbank, Illinois, together with the members of its city council.

Plaintiffs filed a lawsuit in the circuit court of Cook County seeking to prevent defendants from interfering with plaintiffs' contractual rights to operate a cable television system in the city of Burbank.

The trial court entered a temporary restraining order against defendants pending a full hearing. On July 18, 1980, the court entered its preliminary injunction order. The injunction prohibited defendants from interfering with or terminating plaintiffs' rights under a franchise ordinance adopted by defendant city of Burbank through its aldermen. The issue on appeal is whether the trial court abused its discretion in issuing a preliminary injunction.

We affirm.

Defendant city of Burbank, on March 28, 1979, by unanimous vote of the seven-member city council, adopted ordinance No. 18-8-79 granting a franchise to Cablevision of Chicago (hereafter Cablevision) to erect, maintain, and operate the only cable television system in the community. Plaintiffs accepted the franchise, in writing, by way of a letter directed to the city administrator on March 29, 1979.

Briefly, the cable television system in this case delivers electronic signals by cable from the source of the signals to a subscriber's television. The signal originates at a central transmitter. It is relayed from there to a satellite above the earth. It is transmitted from the satellite to a receiving station in the area of service. From the receiving station, the signal is processed through electronic equipment and transmitted to a substation located in or near a given community. The signal is then processed and delivered to subscribers' homes through coaxial cable.

The city ordinance granting the franchise created the basis of agreement between Cablevision and Burbank. Section 18 of the ordinance became the crucial clause in the conflict which arose between the parties. Section 18 provided that:

"Construction of the system shall commence within thirty days after all required utility company licenses have been obtained by the company and service shall be available to every resident of the city within twelve months thereafter, provided that construction shall begin at a date no later than one year from the acceptance of the franchise."

Cablevision began performing its obligations immediately upon accepting the terms and conditions of the ordinance. The company began negotiating with the utility companies, Illinois Bell Telephone and Commonwealth Edison, in March 1979. They were of great importance in the erection of the system.

The physical process of erecting the system includes "strand-mapping" or the survey of every pole in the community which is to receive service. The strand-mapping is jointly performed by employees of the cable television company and the utility companies. Once it is completed, the utility must be prepaid to do "make-ready" work which is the arrangement of the phone and power wires on the utility poles so that the cable wires can be placed a safe distance between them.

By July 1979, the utility companies had begun the preliminary work for Cablevision. They furnished maps and outlines of the work that was to be done. Strand-mapping and design engineering work was begun in Burbank. As well, Cablevision ordered microwave transmitting equipment. By August 1979, Cablevision had expended approximately $350,000 for strand-mapping and microwave equipment.

During September and October 1979, Cablevision told the utility companies that they needed to acquire certain licensing by February 15, 1980. The deadline was not met after several meetings with the companies. They gave a variety of reasons for the delay. The primary reason given was lack of experienced utility personnel. By April 1980, completed work ...


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