DocketNumber: No. X07 CV 00 0072038 S
Judges: BISHOP, JUDGE.
Filed Date: 3/23/2000
Status: Non-Precedential
Modified Date: 4/18/2021
The complaint consists of five counts as follows: Count I against all defendants alleges, in sum, that the defendants have infringed Charter's franchise rights; Count II against the State defendants is a claim of predatory pricing in violation of Connecticut's Anti-trust statute, Connecticut General Statutes
Against the State defendants the plaintiff seeks injunctive relief. The plaintiff seeks monetary damages and fees from the defendant Lamont.
By way of summary, the plaintiff claims that pursuant to the statutory scheme outlined in
A motion to dismiss is the proper vehicle to challenge the court's subject matter jurisdiction. cf. P.B.
"A motion to dismiss admits all, facts well pleaded. (internal citations omitted). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.'(internal citations omitted)" Lewis v.Swan,
The doctrine of sovereign immunity is not an absolute bar to suits against the State. A review of decisional law supports the view that the State may not be sued for monetary damages unless consent for such litigation has been specifically granted by the General Assembly. In 1972, the Supreme Court opined: "It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued. (internal citations omitted) The state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed by the use of express terms or by force of a necessary implication." Baker v. Ives,
Neither the Connecticut Anti-trust Act nor the Unfair Trade Practices Act specifically includes language indicating applicability to State activities. C.G.S.
Contrary to the plaintiffs assertions, the term "or any other legal entity" is not sufficiently broad to conclude that the State is included in the proscriptions of either C.G.S. 41-110 or C.G.S.
Nor is the State bound by the proscriptions of either C.G.S.
Since neither the Anti-trust Act nor the Unfair Trade Practices Act specifically bind the State, sovereign immunity bars suit against the State for any purported violation of either law. The motion to dismiss is granted as to the second, third, and fifth counts of the complaint.
Aside from legislative leave, the broadening and often intrusive role of government in commerce and human activity has caused some erosion in the doctrine of sovereign immunity. Recently, the Supreme Court opined:
Sovereign immunity rests on the principle and on the hazard "that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." J. Block, "Suits against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1061 (1946). "In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts." Sentner v. Board of Trustees, supra,
184 Conn. 343 . When a state official's acts are in excess of legal authority or constitute an erroneous exercise of that authority, "the interest in the protection of such action outweighs the interest served by the sovereign immunity doctrine." (Internal quotation marks omitted.) Horton v. Meskill, supra,172 Conn. 624 . Therefore, "[t]he state is subject to suit without consent . . . in a suit for injunctive relief when the action does not defeat the purpose of the doctrine of sovereign immunity by undue interference with governmental functions." Duguay v. Hopkins,191 Conn. 222 ,227 n. 4. Pamela B. v. Ment,244 Conn. 296 (1998); cf. also, Unisys Corp. v. Department of Labor,220 Conn. 689 (1991); Sentner v. Board of Trustees,184 Conn. 339 (1981).
Count I constitutes a claim that the State, acting through UCONN and its trustees, has acted beyond its authority by constructing cable facilities and providing, in concert with Lamont, integrated voice, data and cable services to student resident halls at the Storrs campus, the cost of which can be directly correlated to an increased per student room rate. Charter asserts that it alone has a franchise for the geographic area which includes Storrs, and that neither the State nor Lamont has authorization from the DPUC to provide cable services. CT Page 3195
In their motion to dismiss, the State defendants assert that they are not legislatively bound by DPUC's regulatory scheme because the legislation under which the DPUC acts does not specifically require the State to obtain a certificate in order to operate a cable system. Additionally, the State claims that the system in operation at the Storrs campus is not, in fact, a cable system. Therefore, the State reasons, their activity is not subject to DPUC regulations. The State also claims that legislation known as UCONN 2000 specifically authorizes the activity in dispute.
The authority of the DPUC to regulate community antenna television systems is found in C.G.S.
No person, association or corporation, or a municipality which owns or operates one or more plants for the manufacture or distribution of electricity pursuant to section
7-213 , shall construct or operate a community antenna television system without having first obtained a certificate of public convenience and necessity from the Department of Public Utility Control certifying that the person, firm or corporation is qualified pursuant to the provisions of subsection (b) of this section to operate such a service within the territory specified in such certificate.
The State correctly points out that this act does not specifically require the State to obtain such a certificate should it choose to operate a community antenna television system.
This legislation, however, has to be understood in the broader context of the Cable Communications Policy Act (CCPA), as amended.
(1)establish a national policy concerning cable communications; II (2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community; (3) establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable systems; (4) assure that cable communications provide and are encouraged CT Page 3196 to provide the widest II possible diversity of information sources and services to the public; (5) establish an orderly process for franchise renewal which protects cable operators against unfair denials of renewal where the operator's past performance and proposal for future performance meet the standards established by this title; and, (6) promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems.
47 U.S.C. § 521 .
The CCPA provides that: "a cable operator may not provide cable service without a franchise."
To the extent that the State may not fall within the general definition of "person" as utilized in C.G.S.
The State further claims that recent legislation known as UCONN 2000 specifically authorizes the State to conduct the activities which are the subject of this litigation. cf. C.G.S.
The State next contends that even if it would be subject to DPUC regulation for the operation of a cable system, it's subject activities do not, in fact, constitute a cable system. In support of this argument, the State asserts that students are not "subscribers" as defined by the law, and that its system does not utilize a public right of way. The plaintiffs allegations that the State is operating a cable system in violation of its DPUC franchise are supported by sufficient facts to constitute a significant claim that the State is acting beyond its authority. The court will not adjudicate the merit of these conflicting factual claims in the context of a motion to dismiss. Accordingly, the motion to dismiss Count I is denied.
In Count IV, the plaintiff restates the essential allegations of the Count I and further asserts that the State defendants' activities constitute a tortuous interference with the plaintiffs franchise rights and its business expectations. The State moves to dismiss this count on the basis of sovereign immunity. The State accurately asserts that there is no statutory authorization for suit against the State based on tortuous interference with business expectations. If through this count the plaintiff sought monetary damages, the count would be subject to dismissal. However, the plaintiff asserts this count as a separate basis in its quest for injunctive relief. As such, it is subject to the application of decisional law cited supra that the doctrine of sovereign immunity does not operate to insulate the State from litigation seeking injunctive relief to the extent that such relief may be granted in a manner that does not unreasonably interfere with legitimate government function. Accordingly, the State's motion to dismiss Count IV is denied.
Bishop, J.