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


                                       -3385-
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.”


                                 -3388-
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
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