Warren Hous. v. Northeast Cable
2017 Ohio 5513
| Ohio Ct. App. | 2017Background
- Warren Housing Development Corporation (WHDC) and Northeast Cable entered a 1991 service agreement containing Paragraph 7, an exclusivity clause making Northeast the sole CATV/pay-television provider on WHDC property and banning satellite dishes and other competing distribution.
- Tenants George Kearney and Jonathan Cambridge installed satellite dishes on leased premises at The Elms and received notices from the property manager prohibiting dishes.
- WHDC sought a declaratory judgment that Paragraph 7 is unenforceable; Kearney and Cambridge intervened alleging violations of the Communications Act and restraint of trade.
- The trial court granted summary judgment for WHDC and the intervenors, declaring the exclusivity clause null and void under 47 C.F.R. § 76.2000(a), which bans exclusivity clauses for MVPDs in multiple-dwelling units.
- Northeast Cable appealed, arguing the FCC rules relied on by intervenors did not apply (and later, during oral argument, suggested it might not qualify as a cable operator). The appellate court declined to consider the new operator-definition argument as waived.
- The Eleventh District affirmed, holding the trial court properly declared the exclusivity clause unenforceable under the cited FCC regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paragraph 7 exclusivity clause is enforceable | WHDC/Kearney & Cambridge: Clause is void under 47 C.F.R. § 76.2000(a) which expressly nullifies MDU exclusivity clauses | Northeast: FCC rules relied on don’t apply here (argued devices not covered by OTA rule; later suggested it might not be a "cable operator") | Court: Clause is null and void under § 76.2000(a); affirmed summary judgment for plaintiffs |
| Applicability of Over-the-Air Reception Devices Rule (47 C.F.R. § 1.4000) to tenants’ satellite dishes | Kearney & Cambridge: OTA rule supports tenants’ right to install reception devices | Northeast: Dishes are not on property within exclusive control of user or safety exception applies | Court: Trial court did not base decision on § 1.4000; safety issue not before court, so § 1.4000 not dispositive |
| Whether factual dispute prevents summary judgment | Plaintiffs: No genuine issue as to enforceability under § 76.2000(a) | Northeast: Raised collateral factual disputes and operator-definition at oral argument | Court: Collateral factual issues irrelevant to the statutory/regulatory question; operator-definition argument waived on appeal |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (announcing de novo standard for appellate review of summary judgment)
- Andreyko v. Cincinnati, 153 Ohio App.3d 108 (2003) (issue raised first at oral argument and not assigned in brief may be waived)