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05/16/97 CABLE TELEVISION AND COMMUNICATIONS

May 16, 1997

CABLE TELEVISION AND COMMUNICATIONS ASSOCIATION OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
AMERITECH CORPORATION; AMERITECH NEW MEDIA ENTERPRISES, INC., N/K/A AMERITECH NEW MEDIA, INC.; AND THE VILLAGE OF GLENDALE HEIGHTS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 96--CH--236 . Honorable John W. Darrah, Judge, Presiding.

Released for Publication June 24, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Geiger, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Cable Television and Communications Association of Illinois (the Association), appeals from the dismissal of its complaint against defendants, Ameritech Corporation (Ameritech), Ameritech New Media Enterprises, Inc. (n/k/a Ameritech New Media, Inc.) (Ameritech New Media), and the Village of Glendale Heights (the Village). Ameritech New Media and the Village jointly motioned to dismiss the complaint pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 1994)). The circuit court of Du Page County entered an order granting the motion to dismiss the complaint based on the court's determination that the Association lacked standing to bring its complaint.

On appeal, the Association contends that the trial court erred in dismissing the complaint because it had standing to bring the complaint (1) under Illinois law; (2) under Federal law; and (3) based on its past representation of its members in various legal proceedings in Illinois.

The Association is an Illinois not-for-profit corporation whose members are cable television companies that hold franchises to provide cable television service in Illinois. Time Warner Entertainment--Advance/Newhouse Partnership (Time Warner) is a member of the Association.

Prior to August 17, 1995, Time Warner held the sole franchise to provide cable television service in the Village. On August 17, 1995, the Village enacted an ordinance granting Ameritech New Media a nonexclusive franchise to provide cable television service in the Village also. Time Warner is not a party to this case and has not sought to intervene.

On October 23, 1995, the Association filed a complaint in the circuit court of Cook County. The case was subsequently transferred to Du Page County. The complaint claimed that the cable television franchise which the Village granted to Ameritech New Media violated certain federal and state statutes. The complaint sought declaratory and injunctive relief including a permanent injunction prohibiting Ameritech New Media from providing cable television services in the Village.

In response to the complaint, Ameritech New Media and the Village jointly motioned to dismiss the complaint pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 1994)). The motion to dismiss asserted that the Association lacked standing to bring this action. Defendants argued that the Association lacked standing because (1) the Association had not alleged in its complaint and could not properly allege that it had suffered any direct injury from the agreement between Ameritech New Media and the Village; and (2) the Association's representative capacity, by itself, did not give it standing.

The Association responded to the motion to dismiss by filing the affidavit of its president, Gary J. Maher. Maher's affidavit stated, inter alia, that the Association has acted as the legal representative of its members on a number of occasions and has acted as a party on behalf of its members in a variety of legal proceedings. The affidavit also stated that the Association's sole source of revenue is membership fees of 4 cents per month per subscriber paid by its members, so that if a member loses subscribers the result would be a decline in the Association's revenues.

The trial court conducted a hearing on the matter. The court noted that the underlying issue was a relatively narrow question regarding the competitive positions, within the framework of applicable federal and state statutes, of Time Warner and Ameritech New Media as providers of cable television services in the Village. The court determined that the Association, notwithstanding its claimed loss of revenues from a decline in Time Warner's subscribers, did not have a direct interest in the underlying issue and therefore did not have standing.

The standing doctrine requires that a party, either in an individual or representative capacity, have a real interest in the action brought and in its outcome. In re Estate of Wellman, 174 Ill. 2d 335, 344, 220 Ill. Dec. 360, 673 N.E.2d 272 (1996). The purpose of the standing doctrine is to make sure that only parties with a sufficient stake in the outcome of the controversy raise the issues before the court. Harris Trust & Savings Bank v. Duggan, 95 Ill. 2d 516, 527, 70 Ill. Dec. 195, 449 N.E.2d 69 (1983).

Under Illinois law, an association's representative capacity, by itself, is not enough to give it standing to maintain an action for declaratory relief on behalf of its members. Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 377, 5 Ill. Dec. 827, 362 N.E.2d 298 (1977). Rather, an association must also have a recognizable interest in the dispute ...


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