The opinion of the court was delivered by: ROBERTSON
Plaintiff holds a cable franchise for the Naval Air Station in North Island, California, and seeks to enjoin the government defendants from soliciting bids for the construction of a satellite/master antenna cable system (SMATV) that would serve the Bachelor Quarters at the naval base. This memorandum sets forth the reasons why the government's motion to dismiss or for summary judgment must be granted.
In 1986 the parties entered into a franchise agreement for the construction and operation of a cable television system at various naval facilities in southern California, including the Naval Air Station at North Island. By agreement of the parties, and in compliance with federal law, the franchise was non-exclusive. Americable duly constructed the cable system and now operates it, serving cable subscribers throughout the franchise area.
The Bachelor Quarters (BQ) at NAS North Island provides temporary housing to bachelor officers and other military personnel. The BQ is wired for Americable service along with the rest of the base. Basic cable service is provided to all residents of the BQ and paid for from a common fund. Americable solicits subscriptions to its "premium" channel service from individual BQ tenants.
In August 1994, the Navy issued an invitation for bids for the design and construction of a SMATV system that would provide a competing cable television service at the BQ. The proposed SMATV service would be owned by the Navy and would become the provider of basic cable television, but it would offer fewer channels than the Americable service and no premium channels. Americable's wiring would remain, and Americable could continue to solicit subscriptions for premium service from BQ individuals.
Americable's lawsuit claims that the solicitation for bids, and the contemplated SMATV, would violate its cable franchise, the Cable Act, Defense Department procurement regulations, and the First and Fifth Amendments.
The Administrative Procedure Act waives the sovereign immunity of the United States with respect to claims for relief other than money damages, provided the relief sought is not expressly or impliedly forbidden by another statute that grants consent to suit. 5 U.S.C. § 702. Actions seeking declaratory relief or specific performance in contract cases are impliedly forbidden by the Tucker Act, 28 U.S.C. 1491 (a) (1), see Sharp v. Weinberger, 255 U.S. App. D.C. 90, 798 F.2d 1521, 1523 (D.C. Cir. 1986). Counts I, II and IV of the complaint allege violations of Americable's franchise agreement with the Navy and of the duty of good faith and fair dealing, for which plaintiff seeks declaratory and injunctive relief. The APA does not act as a waiver of sovereign immunity with respect to those claims, Transohio Savings Bank v. Office of Thrift Supervision, 296 U.S. App. D.C. 231, 967 F.2d 598, 609 (D.C. Cir. 1992), and they must be dismissed for want of subject matter jurisdiction.
Jurisdiction of the remaining counts of the complaint is established by 28 U.S.C. § 1331.
At the center of Americable's complaint is the allegation that the SMATV will "cherry pick" the most lucrative portion of its market. This, Americable argues, violates the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. §§ 521-559 (the "Cable Act").
Americable argues first that the Cable Act establishes a "requirement" that a franchise "provide universal service throughout the franchise area." Its authority for that prosition is 47 U.S.C. § 541(a) (4) (A), which requires that a franchising authority (here the Navy) allow an applicant's cable system "a reasonable period of time to become capable of providing cable service to all households in the franchise area. . . ." That language on its face contains no "requirement" of "universal service," of course. Americable's strained argument is at odds with the purpose of the Cable Act, which is to promote competition, and of the amendment in question, which protects the interests of new franchise applicants and not incumbents like Americable. See S.Rep. 92, 102d Conf., 2d Sess. 1991, reprinted in  4 U.S. Code Cong. & Admin. News 1133, 1225. The additional provision cited by plaintiff, 47 U.S.C. § 541 (a) (3), does not enhance the argument. That provision deals with the practice of excluding low income areas from cable service coverage and is designed to protect the interests of the consuming public, not those of the cable service provider. Thus even if Americable ...