                                       The Attorney        General of Texas

      JIM MATTOX                                       December 29, 1983
      Attorney General



      Supreme Court Building         Mr. Mark G. Goode                     Opinion No.   JM-105
      P. 0. Box 12548                Engineer-Director
      Austin, TX. 78711. 2548                                                      Whether   a   community
                                     Department of Highways and            Re:
      512/475-2501
      Telex 9101874-1367
                                        Public Transportation              antenna or television service
      Telecopier 512/475-0266        P. 0. Box 5075                        may be reimbursed under article
                                     Austin, Texas   78763                 bb74w, V.T.C.S., for the cost
                                                                           of relocation of its facilities
      714 Jackson, Suite 700
                                                                           where   such    relocation   is
      Dallas, TX. 75202.4506
      2141742.8944                                                         necessitated by highway con-
                                                                           struction

      4824 Alberta Ave., Suite 160   Dear Mr. Goode:
      El Paso, TX. 79905.2793
      9151533.3484
                                          You have asked the following question:

,-I        Texas, Suite 70-l                   Can a person in the business of providing a
      .Aous,cm, TX. 77002-3111                 community antenna or cable television service to
      71312235886                              the public be reimbursed under article bb74w-4,
                                               V.T.C.S., for the cost of adjustment or relocation
      606 Broadway, Suite 312
                                               of the facilities where such       relocaeion or
      Lubbock, TX. 79401-3479                  adjustment is necessitated by Interstate Highway
      8061747.5238                             construction when such person has no property
                                               interest in the existing location of such
      4309 N. Tenth. Suite B
                                               facilities?
      McAllen, TX. 78501-1885
      5121682-4547                   Article bb74w-4 provides, in pertinent part:

                                                  Whenever  the   relocation of    any   utility
      200 Main Plaza. Suite 400
      San Antonio, TX. 78205.2797
                                               facilities is necessitated by the improvement of
      51212254191                              any highway in this State which has been or may
                                               hereafter be established by appropriate authority
                                               according to law as a part of the National System
      An Equal Opfwriunityl                    of Interstate and Defense Highways, including
      Affirmative Action Employer
                                               extensions thereof within urban areas, such
                                               relocation shall be made by the utility at the
                                               cost and expense of the State of Texas provided
                                               that such relocation is eligible for Federal
                                               participation.

                                     The statute defines "utility" to include

                                               publicly,   privately, and cooperatively owned
                                               utilities    engaged  in  furnishing telephone,



                                                            p. 441
Mr. Mark G. Goode - Page 2   (JM-105)




         telegraph, communications, electric, gas, heating,
         water, railroad, storm sewer, sanitary sewer or
         pipeline service.

The relevant federal statute, 23 U.S.C. section 123, provides:

              (a) When a State shall pay for the cost of
          relocation of utility facilities necessitated by
          the construction of a project on the Federal-aid
          primary or secondary systems or on the Interstate
          System, including extensions thereof within urban
          areas, Federal funds may be used to reimburse the
          State for such cost in the same proportion as
          Federal funds are expended on the project.
          Federal funds shall not be used to reimburse the
          State under this section when the payment to the
          utility violates the law of the State or violates
          a legal contract between the utility and the
          State. Such reimbursement shall be made only
          after evidence satisfactory to the Secretary shall
          have been presented to him substantiating the fact
          that the State has paid such cost from its own
          funds with respect to Federal-aid highway projects
          for which Federal funds are obligated subsequent               ,T,
          to April lb, 1958, for work, including relocation
          of utility facilities.

             (b) The term "utility", for the purposes of
          this section, shall include publicly, privately,
          and cooperatively owned utilities.

Thus, the federal statute apparently permits the states to determine
which "utility" costs will be reimbursed. As a result, if a community
antenna or cable television service engages in the business of
"furnishing . . .   communications . . .   service,"  its   cost   of
relocation may be reimbursed under article bb74w-4.

     In our opinion, it is clear that a community antenna or cable
television service engages     in   the business    of   "furnishing
communications service." "Communication" is defined in article 9019,
V.T.C.S., a statute which imposes penalties for interception of
communication, as

          speech uttered by any person and any information
          including speech transmitted in whole or in part
          with the aid of wire or cable.

In Independent Theatre Owners v. Arkansas Public Service Comm'n, 361
S.W.2d 642 (Ark. 1962). the court held that a television cable service   ?
provides a telephonic or telegraphic communication service. See
Attorney General Opinion C-702 (1966). We conclude that a community



                                p. 442
.   -


        Mr. Mark G. Goode - Page 3     (JM-105)




        antenna or cable television service engages in the business of
        furnishing communications service and thus, its cost of relocation may
        be reimbursed under article bb74w-4.

             It has been suggested that Senate Bill No. 643, Acts 1983,
        Sixty-eighth Legislature, chapter 556, at 3234, requires a different
        result. We disagree. This bill requires a utility which damages a
        road to "bear the expense of repairing" it. It applies only to
        "unincorporated area[s] of the state" and to "state highway[sl or
        county road[sl." As to such highways, the person providing the
        utility service must "bear the cost of repairing a state highway or
        county road damaged by a relocation." Article bb74w-4, on the other
        hand, is applicable not to state highways, but only to those highways
        designated as part of the interstate highway system.

                                     SUMMARY

                     A person in the business of providing a
                  community antenna or cable television service to
                  the public may be reimbursed under article
                  bb74w-4, V.T.C.S., for the cost of adjustment or
                  relocation of the facilities where such relocation
                  or adjustment is necessitated by interstate
                  highway construction.

                                               -J=$tf&&



                                                         MATTOX
                                                 Attorney General of Texas

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Rick Gilpin
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Rick Gilpin. Chairman
        Jon Bible
        Colin Carl
        Susan Garrison
        Jim Moellinger
        Nancy Sutton




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