COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60703 CABLEVISION OF THE MIDWEST, INC. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION GARY GROSS, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 159,189 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendants-appellees: DALE H. MARKOWITZ, ESQ. RUBIN GUTTMAN, ESQ. PAUL J. DOLAN, ESQ. 55 Public Square 100 Center Street Suite 2130 Chardon, Ohio 44024 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Plaintiff/appellant, Cablevision of the Midwest, Inc., ("Cablevision") appeals from the order of the trial court granting summary judgment in favor of defendants/appellees, Gary and Harley Gross ("Gross"). For the reasons set forth below, we reverse and remand. I. This declaratory action is a dispute between the owners of several apartment complexes and a licensed cable television franchise, concerning the placement of cable television facilities in exterior and interior areas of the apartments. By order of the trial court and stipulation of the parties, this action is for declaratory relief only. At issue is whether under the Cable Communications Policy Act of 1984, 47 U.S.C., Section 542; O.R.C. 4931; and the Codified Ordinances of the City of North Royalton, Ohio, Cablevision may access Gross's private property, including the interior of multi-unit dwellings, to supply cable television service to Gross's tenants. Also at issue are each parties rights, under an agreement to provide cable television service to Gross's tenants, after the cancellation of that agreement by Gross in 1988. On August 15, 1990, Cablevision moved for partial summary judgment asking the court to declare that under local and state law, appellants may provide cable television service to residents living in Gross's apartment complexes. - 3 - On that same date, Gross moved for summary judgment asking the court to declare: 1. that Plaintiff Cablevision has no right of access to private property within its franchise area without the consent of the property owner; 2. that under the North Royalton Cable Ordinance 1981-88, plaintiff Cablevision has no right of access to the interior of Defendants' multiple dwelling unit buildings without Defendants' consent; 3. that under the Cable Act Plaintiff Cablevision has no right of access to the interior of Defendants' multiple dwelling unit buildings; 4. that Cablevision has no right to appropriate private property for its own use; 5. that by virtue of 47 U.S.C. 541(c) and 47 U.S.C. 556(c), federal law has pre-empted the Ohio law under which Plaintiff Cablevision would be regulated as a utility and Cablevision therefore cannot be a "communication business" as that term is used in Revised Code Sec. 4931.11 for the purposes of exercising the powers enumerated in Revised Code Sec. 4931.01 to 4931.23 inclusive; 6. that the right to appropriate land under Revised Code Sec. 4931.04 does not include the right to appropriate any interest in a multiple duelling unit building for the purpose of providing cable television service to residents therein; 7. that the North Royalton Cable Ordinance 1981-88 does not grant Cablevision the right to appropriate any interest in Defendants' property; 8. that 47 U.S.C. 521 et seq. does not grant Cablevision the right to appropriate any interest in Defendants' property; - 4 - 9. that Defendants' refusal to allow Cablevision to enter upon their property, install equipment thereon and run cables through, in and throughout the walls of Defendants' multiple dwelling unit buildings, extending into each and every suite therein is a reasonable exercise of Defendants' property rights and therefore does not constitute an unreasonable interference with the installation of Plaintiff Cablevision's facilities and does not violate any federal, state or local law; 10. that by the terms of the Access Agreement entered into between Defendant and Gross and Plaintiff's predecessor, Matrix Vision of the North Coast, Inc., at the termination of the Agreement, the underground cables and cables within walls at Walnut Hill become the sole and exclusive property of Defendant Gary Gross; 11. that the North Royalton Cable Ordinance 1981-88 only grants Cablevision the right, privilege and franchise to construct operate and maintain a cable television system in the streets of North Royalton for a term of years and does not explicitly or implicitly grant Cablevision the right to take private property; Responses to each motion were filed in a timely manner. On September 18, 1990, the trial court issued an order denying Cablevision's motion for partial summary judgment. On September 21, 1990, the trial court issued an order, devoid of discussion or explanation, granting Gross's motion for summary judgment. This appeal timely follows. II. For its first assignment of error, Cablevision contends that summary judgment was improperly granted for the following reasons: - 5 - A. Chapter 4931 of the Ohio Revised code authorizes Appellant's taking of Appellees' property in order to obtain access to Appellees' tenants requesting cable television service. B. The City of North Royalton ordinance authorizes Appellant to enter and occupy Appellees' property to provide cable television service to Appellees' tenants provided Appellee are paid just compensation. Cablevision's first argument is premised upon R.C. 4931.11 which provides: "Any company organized at any time to transact a telegraph, telephone or communications business may construct, reconstruct, own, use, lease, operate, maintain, and improve communications systems for the transmission of voices, sounds, writings, signs, signals, pictures, visions, images, or other forms of intelligence, as public utility services, by means of wire, cable, radio, radio relay, or other facilities, methods, or media. Any such company has the power and is subject to the restrictions prescribed in sections 4931.01 to 4931.23, inclusive, of the Revised Code, for telegraph or telephone companies." (Emphasis added.) Cablevision contends that this statute gives it status as a utility and, therefore, under R.C. 4931.04 it may appropriate private land by eminent domain for the construction of its cable system. Only two Ohio cases have addressed the issue of confirming "utility" status upon a cable television company. In Warner Cable Communications v. Tax Commissioner (April 26, 1990), Franklin App. No. 89 AP-889, unreported, the Tenth District Court - 6 - of Appeals found that the cable television company was a "utility" for taxation purposes under R.C. 5739 and 5741. This case governed only the purchase and repair of equipment by the cable television company. However, in Peterson v. First Americable Corp. (January 20, 1989), Trumbull App. No. 4026, unreported, a case quite similar to the one sub judice, the Eleventh District Court of Appeals found that the cable television company was not a "utility" under R.C. 4931.11, and thus did not have the power of eminent domain authorized by R.C. 4931.04. The holding in Peterson is buttressed by the Cable Communications Policy Act of 1984, 47 U.S.C. Section 541(c) which mandates that: "Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service." Further, 47 U.S.C. Section 556(c) provides that the Cable Communications Policy Act of 1984 preempts and supersedes inconsistent state and local law. On the basis of Peterson, 47 U.S.C. Section 541(1), and a plain reading of Chapter 4931 of the Revised Code, we find that Cablevision is not a "utility" or "communication business" within the meaning of R.C. 4931.11, and therefore does not have the power of eminent domain conferred thereby. Cablevision's second argument is premised upon the Codified Ordinances of the City of North Royalton; Ordinance 1981-88. - 7 - Cablevision contends that Section 5 of the ordinance imposes a duty upon it as franchisee to provide cable service to every dwelling unit including homes and apartments. Cablevision attempts to fortify this supposed mandate by claiming that Section 14 of the ordinance prohibits landlords from unreasonably interfering with this duty. Section 5 of the ordinance merely provides that "cable service shall be made available" to every dwelling unit. It does not, as Cablevision contends, mandate that cable television service be installed in every unit. Section 14 of the ordinance, however, is more compatible with Cablevision's position. This section reads in pertinent part: "No landlord shall unreasonably interfere with the installation of cable television facilities upon his or her property or premises requested by a lawful tenant except that a landlord may require: "(1) That the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants; "(2) That the Grantee or the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and "(3) That the Grantee and the Tenant agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities." (Emphasis added.) - 8 - The matters of primary concern in this section of the ordinance are that: (1) Service is to be provided upon request by a lawful tenant. (2) The ordinance appears to provide compensation to the landowner for any damage. This ordinance appears to authorize the type of operation Cablevision seeks to undertake. However, Section 14 is identical, in all pertinent aspects, to the New York statute examined by the U.S. Supreme Court in Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S. 419. In Loretto, the New York statute, New York Exec. Law Section 828, provided: "1. No landlord shall "a. interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require: "i. that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants; "ii. that the cable television company of the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and "iii. that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities. "b. demand or accept payment from any tenant, in any form, in exchange for permitting cable television service on or within his property or premises, or from any - 9 - cable television company in exchange therefor in excess of any amount which the commission shall, by regulation, determine to be reasonable; or "c. discriminate in rental charges, or otherwise, between tenants who receive cable television service and those who do not." Id. at 423. The Supreme Court ruled that the minor but permanent physical occupation of an owner's property, authorized by Section 828, constitutes a "taking" of property for which just compensation is due under the Fifth and Fourteenth Amendments. Id. at 426. Writing for the court, Justice Marshall concluded that "in such a case, the property owner entertains a historically rooted expectation of compensation and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation." Id. at 44. Justice Marshall continued that "we do not, however, question the equally substantial authority upholding a State's broad power to impose appropriate restrictions upon an owner's use of his property." Id. The Supreme Court did not find the New York statute unconstitutional, but remanded the case for a determination as to compensation due the property owner. Because we find that no contradictory federal or state law exists that would preempt Section 14 of Ordinance 1981-88 of the Codified Ordinance of the City of North Royalton, we find that Cablevision, as a licensed franchise, must be permitted to - 10 - install its cable television service in the Gross apartments in circumstances authorized by Ordinance 1981-88, Section 14, provided proper compensation is paid to Gross. The amount of compensation should be determed by the trial court. Based upon the foregoing, we conclude that Cablevision's first assignment of error is not well taken with regard to its claim of eminent domain power under R.C. 4931, but is well taken with regard to its license under the Codified Ordinances of the City of North Royalton, to provide cable television service to any lawful tenant who requests such service, provided that compensation is paid to the landowner. III. For its second assignment of error, Cablevision contends that the trial court erred in granting Gross's motion for summary judgment because there are genuine issues of fact regarding whether easements dedicated for compatible uses exist on Gross's property, enabling Cablevision to deliver its cable television services, pursuant to Section 621(a) of the Cable Communications Policy Act of 1984. Cablevision raises two arguments under this assignment of error. First, Cablevision asserts that the Cable Act authorizes it to enter upon Gross's property, including the interior units of the buildings, to provide cable television service, by using easements that are dedicated for compatible uses. Cablevision points out that telephone, electric, gas and satellite television - 11 - services may qualify as compatible easements. Second, Cablevision argues that there are genuine issues of material fact as to whether such easements exist on Gross's property. The issues raised in Cablevision's first theory have been recently and thoroughly analyzed by both the Eleventh and Third Circuit Courts of Appeals. In Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund, VI, LTD. (1992), 953 F. 2d 600, the Eleventh Circuit Court of Appeals held that Section 621(a) of the Cable Act does not authorize a cable television company to access private, non-dedicated easements which may exist so that particular utilities can access the interiors of multi-unit apartment buildings. Id. at 609. Rather, Section 621(a) authorizes access only to dedicated utility easements. Id. The court interpreted "dedicated" to mean recorded on a plat with the appropriate governmental authority. Id. In reaching this decision in Cable Holdings, the court relied primarily upon two provisions of Section 633 of the Cable Act which Congress omitted from the final draft. The omitted provisions parallel those of Section 14 of North Royalton Ordinance 1981-88. Section 633 would have allowed a cable television company to access apartments in a multi-unit building, where there was a tenant request for service, and where the landowner was properly compensated. The legislative history of the cable act, which the Cable Holdings court adopted, and which is more fully set forth in Cable Investments, Inc. v. Woolley - 12 - (1989), 867 F. 2d 151, indicates Congress's intent to not regulate this area on a federal level. In Cable Investments, Inc. v. Woolley, supra, the Third Circuit Court of Appeals succinctly found that: "The deletion of section 633 in the final version of the Cable Act, the transfer of some of its provisions to section 541 but not those provisions detailing the factors to be considered in arriving at just compensation for a taking, the deletion of any reference to multi-unit buildings, and the statements of the congressmen approving and decrying the deletion of section 633 lead ineluctably to the conclusion that Congress made a considered decision that the Cable Act should not give cable operators the right to impose their service on owners of multi-unit dwellings who choose not to use them." The decisions in Cable Holdings and Woolley are directly in line with several other recent federal decisions. See Cable Assoc. v. Town & Cty. Management Corp. (E.D. Pa. 1989), 709 F. Supp. 582; Media General Cable v. Sequoyah Condominium Council (E.D. Va. 1990), 737 F. Supp. 903; Uacc-Midwest, Inc. v. Edward Rose and Sons, No. 1-90-CV-383 (E.D. Mich. May 22, 1990). Cablevision's interpretation of the Cable Act of 1984, which would allow a cable television company unlimited access to multi- unit apartment buildings is unsupported by the Act itself, and the weight of federal authority on the subject. We adopt the views and holding of Cable Holdings and Woolley and apply them to the matter, sub judice. Cablevision's second argument under this assignment of error has substantially more merit. Since under the Cable Act of 1984, - 13 - Cablevision may access "easements which are dedicated to compatible uses," it is a material issue of fact whether there are such easements on the Gross property, whether they are "dedicated" and whether they are compatible for use by cable television. The legal meaning of the phrase is adequately set forth in Cable Holdings, supra. The Gross's motion for summary judgment, however, does not adequately set forth a factual basis sufficient to support the trial court's ruling. Material issues of fact remain as to whether there are other utility easements on the Gross property, and whether they are dedicated. For these reasons we find that Cablevision's second assignment of error is not well taken with regard to its interpretation of Section 521(a) of the Cable Communications Policy Act of 1984, but is well taken with regard to their argument that material issues of fact remain. The decision of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion. - 14 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and PATTON, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .