Hon. D. C. Greer Opinion No. C-702
Stat,e Highway Engineer
Texas Highway Department Re: Whether firma which
Austin, Texas provide TV cable ser-
vice have the right to
place their cables a-
long State Highways
within the highway right
of way.
Dear Mr. Wear:
By letter you state that the Texas Highway Depart-
ment has been approsched by firma whlcfi provide TV cable
eervice, concerning the placement of their cables along State
Highwayr . You advise th&t these firms generally install re-
ceiving antennae at some high area where the signals from
television broadcast statlone.can be picked up., The signals
may then be relayed by micro-wave to a community distributor
antenna, and thence by cable to subscribers to ihe service.
The we of State Highways by the cable Is of concern to the
Texas Highwsy Department.
The question which you present is as follows: “Un-
der the laws of the State of Texata, do firms which provide
TV cable service have a right to place their cables along
State Highways within the hlghwry right of’ way?”
If such firms which provide TV cable service do
have a right to place their cables along State Highways with-
in the hi hway right of way, this right must be derived from
Article 1&16, Vernon’s Civil Ststutes, which provides:
“Corporations created for the purpose of constructing
and maintaining magnetic telegraph lines, are authorized
to set their poles, piers, abutments, wires and other
fixtures along, upon, and across any of the public roads,
streets and waters of this State, In such manner as not
to incommode the public in the use of such roads, streets
and waters. ” Acts 1874, p. 1%; O.L. vol. 8, p. 134.
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Hon. D. C. Greer, pege 2 (C-702)
In the absence of statutory authority, a corpora-
tion contemplated by Article 1416 could not place its cables
along State Highwhys within the highway right of way. Alice,
Wade Cit k C. C. Tel. Co. v. Bllllngsley, 77 S.W. 255 (Tex.
~ppigo~, error ref.). The authorlty must be granted
directly by the legislature or by munlclpsl authorities pur-
suant to express or Implied powers delegated to the munici-
pallty . 86 C.J.S. 32, Telegrams, Telegrsphs, Radio, and
Television, Sec. 24. 54 Tex.Jur.2d 598, Telegrbphs and Teie-
phones, Sec. 6; p. (32, Sec. 32.
The controlling legal question presented is whether
Article 1416 is broad enough in scope and meaning to include
corporations providing TV cable service.
sonable, practical, and liberal construction to carry out the
leglslatlve purpose. In holding that the etatutory phrase
“magnetic telegraph lines” w&s broad enough to include the
“telephone,” the Court pointed out that at the time of the
criglnal passage of the statute, telephones had not been in-
vented, and said:
II . (they were not generally known; and It
cannot’b; suppose 6 that the Legislature had telephones
j.n mind when It used the word ‘telegraph. 1 However, the
fact that the telephone w&s not then in contemplation of
the le lslature does not control the construction of Ar-
ticle &42, subd. 8; for If the language used Is broad
enough to embrace a subsequently developed method, the
later invention might be controlled by the pre-existing
law, as if it had been in existence at the time the
law was m&de . . . ”
Quoting from the English
case of Attorney General
, 6 Q.B.Dlv. 254, 255, th Supreme
Antonio & A. k P. Ry. CE. c&se -
pm, proceeded to give a DrObd 1 1 a rlNt1 on of what ‘
ii
embraced in the mesning of “tele~%ph”eas used in the statute:
“The result of the definition seems to be that any
apparatur for tranmmltting merrager by electric signals
Is a telegraph, whether a wire is ured or not, and that
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Hon. D. C. Greer, page 3 (C-702)
any spparatue of which a wire used for telegraphic com-
munications Is an essential part Is a telegraph, whether
communication 18 made by electricity or not.”
In accord, see
poievof the leglelsti& in the statute w&e to provide ior
‘the transmleelon of messages by wires acted on by electri-
city. ”
In construing the atatute in question, it Is 6180
pertinent to observe that it Is in the public Interest in re-
ceiving utility eervlcee that gives rise to the right of such
public utfllty companlee to use the roads and streets. State
v. Dallas, 319 S.W.2d 767 (Tex.Civ.App. 1959, no writ hlr
tory). Even a “de facto” telephone corporation may take ad-
vantage of Article 1416, eu ra.
Co. v. Paducah Tel. Co., ldl
writ nietory).
This office, In Opinion No. W-1417 (1962)? had
occasion to construe the meaning of “telegraph lines’ as used
in the same statute, in the light of the above cases, and it
was held that the statute was brosd enough to Include tele-
vision lines, which transmit meeeagee by wires acted on by
electricity. The basis of our holding was t.hat television
was a “communication system of the same nature as the tele-
i:;:; e,e;em, but on a more limited ecsle and with pictures
. It Is merely an advancement or improvement in
the sit ~f’~elegrbphy and telephony, with the same purpose
of transmitting meeaagee by wires acted on by electricity.”
Since the issuance of our Opinion WW-1417 on Au-
gust 17, 1962, the Supreme Court of Arkansas, on Dec. 3,
1962, In Independent Theatre Owners v. Arksneae Public Ser-
vice Cos&eeion, Z35 Ar K. hot! m &iw. m *n bnaea
aown 6 sirnil ar opinion In whldh the suthoritiee o other
juriedlctlone were reviewed, concluding that television ca-
ble rervlce provides a telephonic or telegraphic communlca-
;:ee:ervice wlthln the naturel purpose and meaning of the
. The court said that, television tranemlseion is
an Integral part of the telephone and telegraph business as
It has developed and now lxlete.” It therefore held that the
Public Service Commlerlon h&d jurledlctlon to require the
telephone company to furnish its facilities for purpose of
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Hon. D. C. Greer, page 4 (c-702)
television, since the sending of bn electrical impulse over
a cable owned by the telephone co~panyproduclng a picture
or sound was 6 system of conveying 6 meeeage or communica-
tion by telephone or telegraph” within the statute making
such service a public utility and subjecting it to regula-
tion by the commleeion.
.,
Dletlngulehlng the case of Television Tranemleelon,
Inc. v. Public Utility Commlselon, 47 cbl.zd 82 301 P . 2d 86 2
5150) tn a f alrferent statutory ls&ubge or pur-
pose, thoz Co:r?i%zez at page 645 from In re New York Tele-
phone Co., 34 P.U.R.3d 115, In which it w&e s&la that 6 con-
clusion as to jurisdiction by the Public Service Commission
'I
cannot be m&de to depend upon the type of
eyetem’u~ei; I.e., coaxial cable or ordinary telephone
wires, but must .be based on 6 determination whether
thereby a telephonic or telegraphic communication ser-
vice la being provided. We think one le. It Is clesr
that the telephone company Is undertaking to transmit
intelligence from one point t,o another for the benefit
of a subscriber, uelng’prlnclplee of telephony (or te-
legrbphy . It proposes to provide this service upon
elmllar 1 erme to one and all seeking It. The company’s
filing of 6 tsrlff covering the service was proper.”
The Court further observed:
televlelon Is merely an advance or improvement In the
art of telegraphy and telephony and therefore the right
of eminent domain for telegraph and telephone purposes
. . . Is applicable to televlelon.~
“In Ball v. American Telephone and Telegraph Co.,
227 Nlee.~ ate s 0. 2a 42 tn e H.leelrelppl court said:
~Televlelon 1: but one OS ihe many lclentlilc achleve-
manta of the past few decades made possible by develop-
ments o? the carrier art. Some of the others are rbdlo,
teletype, and the photo-telegrbph, each of which employs
electrical lmpuleee In tranamleelon. All of these de-
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._, .-.. _ -~ ..-. .__ .-.. -____ ~.
,.I
Hon. D. C. Greer, page 5 (C-702)
vices to aore extent make use of cables and wires in
the transmission process. Transmission techniques de-
veloped by or 6s an adjunct of the telephone business
has made possible the services performed by these de-
vices. We should not construe the eminent domain ~+a-
tutee so as to require the telephone and telegraph
companies to secure new eseemente for every new device
that emp,loye the use of electrical impulser even wh?n
the new device perfgrms 6 function other U&n the trans-
mission of sound or articulate voice. To do so would
lead to absurd and unreasonable results. We conclude
that television tranemieelon is bn integral part of the
telephone and telegrsph business 6s it has developed
and now exists. “’
Article 1416 is broad enough in lenguage, purpose,
and scope to Include television corporations created for the
purpose of transmitting intelligence by electricity or “mes-
s&gee by electric signals,” and “whether a wire is used or
not, ” as was held in the San Antonio & A. P. Ry Co. case,
suprs.
In an interesting annotation on the legal aspects
of television, we find this comment in 15 A.L.R.2d 785, at
pages 7%‘-798r
“Rejecting the defendant’s contention that the
purnoee of the plaintiff telephone company in seeking
to condemn a line &cross his property was primarily
for the purpose of installing 6 coaxial cable for tele-
vision rather than for telephone and telegraph pur oses,
lo Tel. & Tel. Co. v. Steent(:E9to$
Ohio L.Abs. 114 Bald that i:
evidence that’the primery purpose for
the lnetallatlon of the cable was to provide telephone
nnd telegraph circuits, and in addition to these uses
it no doubt would be used in the future for television
purpoete, adding that since the tranemleeion of tele-
vision was merely an advancement in the art .of telegrs-
phy end telephony the right of eminent domain for such
rurpoees conferred by the etstute was applicable to
television, since statutes granting the right of eminent
domain, while strictly construed, should not be so tech-
nically or unreae,onably interpreted as to interfere with
the normal business of a utility and the development of
the service which it rendered to the public.”
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Hon. D. C. Greer, page 6 (C-702)
From the buthoritiee heretofore cited, it Is
apparent that corporations providing TV cable service are
public util~tiee in contemplation of law snd subject to
regulatior. as well as the rights conferred under Articles
1416 through 1532, Vernon’s Civil Statutes. A corporation
organized for public service and affected by the public in-
terest is regarded as a public utility, whether or not ex-
pressly declared so by the legiplatufe. 47 Tex.Jur.2d 391,
Public Utilltlee k Service, Sec. 1.
We therefore answer your question t,hat under hr-
ticlee 1416, et. seq., corporations created for the purpose
oE nroviding TV cable service have 6 right to place their
cables slang Stste Highways within the highway right of way.
SUMMARY
Under Articles 1416, et. seq. V.C.S., corporations
created for the putpose of providing TV cable service have
a right to place their c&b:es along State Highways within
the highway right of way.
Yours very truly,
Waggoner Carr
Attorney General of Texas
Ey* e*
Aeeletant Attorney General
KBT:km
APPROVED
:
OPINIONCOMMITTEE
w. v. Geppert, Chblr!nan
W. 0. Shultz
John Reeves
James McCoy
Robert Flowers
Corbln Snow
REVIEWEDFOR THE h!I!TORNEX GENERAL
BY: T. B. Wright
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