CopyCited 1 times | Published | District Court, M.D. Florida | 2007 U.S. Dist. LEXIS 16597, 2007 WL 779108
...MIC asserts that contracts entered between Comcast or its predecessors and the residents, condominium associations or developers which preclude condominium communities from utilizing the cable services of any provider other than Comcast are unenforceable as violations of Florida Statutes § 718.1232 [2] . Plaintiff asserts that five kinds of exclusive arrangements utilized by Comcast violate § 718.1232:(1) provisions that expressly give Comcast the exclusive right to provide cable services at a condominium; (2) provisions that require all residents to pay Comcast for basic cable service, whether or not they want service from Comcast; (3...
...happened before the judgment was rendered." Fla. Stat. §
86.051. Two statutes from the Florida Condominium Act, Fla. Stat. §§
718.101
718.622 are also relevant. The statute which plaintiff claims is being violated by Comcast is Florida Statute §
718.1232, which states: No resident of any condominium dwelling unit, whether tenant or owner, shall be denied access to any available franchised or licensed cable television service, nor shall such resident or cable television service be required...
...xpense shall be shared equally by all participating unit owners. The association may use the provisions of s.
718.116 to enforce payment of the shares of such costs by the unit owners receiving cable television. III. Plaintiff argues that Fla. Stat. §
718.1232 gives residents of condominiums a statutory right to choose among available franchised or licensed cable service providers, and gives franchised or licensed cable service providers an enforceable right to serve any resident who wants its service....
...Comcast asserts that plaintiff is simply seeking an advisory opinion, which is precluded in a declaratory judgment action. (Doc. # 426, pp. 3-5.) On a related but distinct issue, Comcast argues that MIC has no standing to assert a declaratory judgment claim under Fla. Stat. § 718.1232....
...The Court finds that there is a bona fide need for declaratory relief as to these current contracts based on present, ascertainable facts as to plaintiff's rights (i.e., those rights plaintiff has standing to enforce, discussed below) under Fla. Stat. § 718.1232....
...on." Ferreiro v. Phila. Indemn. Ins. Co.,
928 So.2d 374, 377 (Fla. 3d DCA 2006). The liberal construction of the Florida Declaratory Judgment Act informs the Court's decision on standing. Olive v. Maas,
811 So.2d 644, 648 (Fla.2002). Florida Statute §
718.1232 sets forth two rights applicable to a resident of a condominium dwelling unit and one right applicable to a cable service provider. First, "No resident of any condominium dwelling unit, whether tenant or owner, shall be denied access to any available franchised or licensed cable television service, . . ." Fla. Stat. §
718.1232....
...single-family homes within the same franchised or licensed area, and (2) installation charges as may be agreed to between the condominium resident and the cable provider. The Court finds that MIC only has standing to assert this aspect of Fla. Stat. § 718.1232 on its own behalf. Comcast asserts that even if plaintiff has rights under § 718.1232, plaintiff cannot sue a cable operator because such suit is not within the purview of Fla....
...It does not, however, restrict all suits for violation of the Florida Condominium Act to these entities. E.g., Dynamic Cablevision,
498 So.2d at 635. The Court concludes that Fla. Stat. §
718.303(1) does not preclude MIC from suing to enforce its right under. Fla. Stat. §
718.1232....
...anchised or licensed area, and (2) installation charges as may be agreed to between the condominium resident and the cable provider. IV. The Court will address the five types of contractual arrangements which plaintiff MIC asserts violate Fla. Stat. § 718.1232....
...561, is useful to keep in mind when reviewing the cable service agreements: A. Exclusive Contracts: Plaintiff asserts that contractual provisions which explicitly give Comcast the exclusive right to provide cable service at an MDU violate Fla. Stat. § 718.1232....
...e charge of $14.50 ($507.50 total) plus applicable fees and taxes. The Bulk Bill Addendum was for an term concurrent with the Agreement. Plaintiff's post-trial memorandum argues without elaboration that such exclusivity provisions violate Fla. Stat. § 718.1232....
...Joint Pretrial Statement, (Doc. # 299, p. 14). Additionally, plaintiff stipulated that "[e]xclusive agreements are not per se unlawful." Id. at p. 15. The Court concludes that the exclusivity provisions of the Comcast contracts at issue in this case do not violate Fla. Stat., § 718.1232....
...Plaintiff's request for a declaratory judgment to the contrary is denied. B. Exclusive 100% Take-or-Pay Bulk Service Contracts: While both Comcast and MIC utilize exclusive bulk service contracts, MIC asserts that its are legal while Comcast's are in violation of Fla. Stat. § 718.1232....
...elects to receive Comcast services or not. Thus, any unit resident who wanted to receive cable services from another provider would have to pay that provider and the assessment for the Comcast bulk" bill. This, plaintiff argues, violates Fla. Stat. § 718.1232 because "a resident would essentially have to pay substantially more for basic service in order to do business with a competitor [of Comcast]." (Doc....
...Plaintiff asserts that such post-wiring is expensive and/or aesthetically displeasing, thus significantly inhibiting its ability to provide cable service to such condominiums. (Doc. # 425, pp. 2-3, 13.) The Court finds that these contract provisions do not violate plaintiff's statutory rights under Fla. Stat. § 718.1232....
...o the type of contract at issue here. Dynamic Cablevision,
498 So.2d at 635. Plaintiff's request for a declaratory judgment as to this issue is denied. *1169 C. Exclusion for Use of Inside Wiring Not Owned by Comcast: MIC argues: (1) that Fla. Stat. §
718.1232 requires that an incumbent cable provider make the wiring it installed and owns available for use by a qualifying competing cable operator, "presumably for fair compensation," if this is what is necessary to enable a resident to choose to take service from the competitor, or (2) at the very least Fla....
...Plaintiff reads the statute more broadly than it is written. The Monterrey, Southern Breeze Gardens, and Sunset Cove Condominium Association Boards agreed to an arrangement in which Comcast *1171 retained ownership of "all parts of the System installed by [Comcast]." Nothing in Fla. Stat. § 718.1232 prohibits this sort of agreement; in fact, such agreement is authorized by the Fla....
...(Plaintiff's Exh. 280.) As a result of negotiation, a much shorter window of removal was agreed upon in the Crescent Beach agreement. MIC concludes: "Given the ubiquity of Comcast's 6-month provision, its great potential for undermining the rights that Section 718.1232 bestows upon residents of condominiums and competitive cable service providers, and the inability of all but `unusually astute' representatives of associations to understand how Comcast can use it [sic] coerce renewal of its service agreements, the Court should declare that provision is unlawful and unenforceable under Section 718.1232." (Doc....
...17.) Plaintiff's argument proves too much. It is clear that this is a matter of negotiation between Comcast and the individual condominium association. Calling one association's representative more astute does not render the other contracts a violation of Florida Statute § 718.1232. The Court finds that the 6-month provision does not violate Fla. Stat. § 718.1232....
...Therefore plaintiff's request for a declaratory judgment is denied. E. Exclusive Right of Entry That Extends Beyond Term of Service: MIC argues that Comcast utilizes exclusive right-of-entry agreements that extend beyond the term of its service agreements, in violation of Fla. Stat. § 718.1232....
...provided below." This would require, according to MIC, that the MDU either renew their bulk agreement or go to an individually billed procedure for the years remaining under the Agreement. This, plaintiff asserts, violates "the letter and spirit of Section 718.1232." (Doc. # 425, p. 18.) The Court disagrees, and finds that whatever *1172 the negotiated incentive to renew provided by the Bulk Bill Addendum may be, it does not violate Florida Statute § 718.1232....
...[3] Five other current contracts are specifically non-exclusive (Belize, Crescent Beach, Estuary II, Southern Breeze, and Sunset Cove); two contracts are silent as to exclusivity (Estuary I and Monterrey). None of these contracts violate Fla. Stat. § 718.1232 based on exclusivity.
