*1 Hillig. hire not to of Justice Department ENTERTAINMENT TIME WARNER
Furthermore, finds that this Court itself, reference, COMPANY, L.P., a Delaware limited employment negative change Liberty significant of partnership; not cause Cable did status because employment corporation, Hillig’s Missouri, Inc., a Missouri Hillig’s any other effects not have Defendants-Appel- did Plaintiffs-Counter em- Hillig is still status. employment lants, Defense, Department with the
ployed v. she received promoted since been reference, the De- job negative LICENSEE, MIDWEST EVEREST destroyed of Justice has since partment L.L.C., Everest dba Connections job negative the memorandum Defendant-Appellee, Corp., holds, Therefore, this Court reference. law, not Hillig did a matter Partners, L.P., a Kansas Atrium action. tangible employment suffer partnership, Defendant- limited (Id. 395.) Claimant-Appellee. Counter ' v. is like Tran respect this case In one Colo., 355 F.3d Colls. in Trustees State Council, Multihousing Com- National Cir.2004). (10th apply Whether Institute, munity Insti- Associations vigorous “tangible employment the more Management, tute of Real Estate an “adverse liberally define action” test Association, Apartment Na- National horses cannot action” these employment Real Estate In Association of tional unlikely that highly It the cart. pull Trusts, Real Estate vestment any employment opportunity. Hillig lost Roundtable, Real Access Alli Aquilino, “[speculative stated As we ance, Amici Curiae . employ constitute adverse harm does not Trimmer v. United ment action. See No. 03-3005. Labor, 174 F.3d Dep’t
States Appeals, States Court United Cir.1999) (10th (in arising under a case 1103—04 Tenth Circuit. statute, holding blower a federal whistle concerning future evidence employee’s Aug. speculative harm was too employment action).” employment constitute adverse (citations omitted).
responsibility for the verdict conformed
jury, insuring conclu- legal it erred Whether
law. ac- employment equating “tangible
sion action” employment “adverse
tion” with not, record does because the
matters I event. Hillig’s arguments
support
would affirm. *3 (Bernard Rhodes, Quinn J.
Michael W. L.C., MO, City, Gage, Kansas Lathrop & briefs), Ca- on the with him Stamford, CT, Plaintiffs-Ap- ble, for the pellants. (Rachel Lipman Smithyman
Lee M. L.L.C., Licensee, Reiber, Everest Midwest brief), MO, with City, Kansas him Chartered, Zakoura, Over- Smithyman & Park, KS, Defendant-Appel- for the land lee. Ames, Lavery Led- Gerard
Matthew C. Eaton, P.L.L.C., erer, Wash- Miller & Van Platt, DC; President & Roger Vice ington, Roundtable, Counsel, The Real Estate DC; Foley-Healey, Molly Washington, Institute, Alexan- Community Associations VA; Co- dria, Tony Edwards and Robert Real hen, Estate National Association DC, Trusts, Washington, Investment for the Amici Curiae. the brief LUCERO, McKAY, and Before Judges. HARTZ, Circuit LUCERO, Judge. Circuit application case in this At issue Commission’s Communication the Federal wiring (“FCC”) “inside cable television grants an which rules” under Time War- provider, cable an incumbent wiring the cable ner, to maintain a license apart- within installed predecessor The Atriums complex, Atriums. ment license is limited argues that ca- currently being used 1042 services, through hallway ceilings and therefore that from the riser
ble television regulation an FCC which may invoke on each floor and toward each individual the incumbent cable requires apartment. Finally, there are “home abandon, sell, remove the incum- wires”; approximately twelve inches out- longer legal- has an bent cable each apartment side the “home wir- right to maintain. ly enforceable See (there ing” becomes “home wires” is no agreed, The district court C.F.R. 76.804. physical demarcation between “home run finding that the license between Time wires”). wires” and “home The “home and The Atriums did not extend to apartment wires” into each individual services, providing use 76.5(ll-mm). unit. See C.F.R. *4 that The could accordingly and Atriums 2002, In June The a Atriums sent letter regulations against invoke the War- Warner, stating to Time that it intended to jurisdiction Exercising ner. under 28 (“Ever- allow Everest Midwest Licensee 1291, AFFIRM. U.S.C. est”), provide which received a franchise to
I telecommunication in services Overland Park in compete the summer of to Tutera, In April Joseph represent- with Time Warner in the of cable Atriums, a multi-unit ing The retirement television and high speed internet services into a complex, entered non-exclusive li- in accomplish The Atriums. To goal, this with cense TeleCable of Over- The Atriums demanded Time elect (“TeleCable”), land Park Time Warner’s abandon, sell, to or remove its run home predecessor, provide to cable television to wires in The Atriums which were not cur- The Atriums. The Atriums and TeleCable rently being used Time Warner sub- Warner1) (now Time executed the stan- scribers, pursuant recently to enacted agreement, change; dard license without regulations, FCC specifically 47 C.F.R. the according to Time Warner 76.804(b). 76.804(b)(1) Section states: right, permission received “the license and install, and operate equip- maintain” the Where MVPD video [multichannel necessary provide “to Pay ment and CATV programming owns distributor] (I to The TV Atriums’ tenants. services” wiring home run in [multiple an MDU 17.) By at App. contract’s terms Time (or dwelling and does not unit] will not property Warner retains ownership of the at the conclusion of period) the notice equipment installed. have a to main- agreement,
Pursuant to the any Time War- tain home run wire dedicated to an ner installed a cable system particular distribution at premises against unit on the general wishes, Atriums. There are three the MDU owner’s the MDU parts system. to a cable may distribution owner permit multiple MVPDs First, riser, large there is the a compete cable that to use the individ- building runs into the through utility a ual home run wires dedicated to each ground floor, closet on the up and through unit the MDU.... The incumbent utility closets on each of the floors. Next provide MVPD will then have ... runs the “home run wiring” single at issue this written election to the own- MDU litigation, which whether, consists of wires that run er every as to for each and one successor, 1. As Time Warner is TeleCable's all be to Time Warner. opinion references going in the forward will property on the Owner’s [The Atriums’] to a dedicated home of its Project order to alternative chooses an who subscriber Pay services to tenants service, MVPD CATV and TV the incumbent provider’s Project. [Time Warner] and restore TeleCable remove will: law; Project with state have the to enter the building consistent shall MDU it; disabling perform without time to maintenance on abandon If owner. repairs replacements to the MDU make or sell the purchase facilities, thereof, any part owner refuses and to the MDU may MDU owner wiring, install or disconnect customers. pur- alternative permit 17.) (I result, App. As provider is it. If the alternative chase that under the license concluded wiring, it will purchase permitted to maintain legal right ment it retained make a similar election required to be wiring. Under this all solely run wire dedi- for each home The Atri- a subscriber who switches back cated to building Everest into the ums could allow alternative from the facili- to construct its own cable services *5 cumbent MVPD. i.e., however, ties, lay wiring; its own Time 76.804(b)(1). § 47 C.F.R. obligated was under Warner 76.804(b) abandon, sell, § or remove its 76.804(b), § The invoking In its letter in The Atriums. hope that Time Warner expressed Atriums wiring to home run agree would to sell the in proceeded Time file suit Warner Everest, an out- that such perceived 2002, July seeking district court federal ability ten- “facilitate the come would declaratory that 47 C.F.R. judgment a Ever- from Time Warner to 76.804(b) ants to switch home run apply did not its (I a basis.” and vice versa on seamless est Specifically, in The Atriums.2 165.) refused, argu- Time Warner App. preexist- it had a maintained that Warner may invoke ing that an MDU owner right to maintain ing, legally enforceable pro- only when the incumbent regulations property. on the its wires enforceable interest legally vider lacks a injunction requested preliminary also a maintaining the home invoking The Atriums from preventing a le- Claiming that it retained property. parties agreed to consol- regulations. interest, Time Warner gally enforceable pre- hearing idate the Warner’s interpretation on its hearing relied liminary injunction motion with a The Atriums and Time agreement between Entertain- on the merits. Time Warner stated, Warner, LP, part, Partners, that: Co., which LP Atriums ment v. (D.Kan.2002). 1257, 1258 F.Supp.2d 232 Subject to terms and conditions 2002, 26, court the district out, Atri- On November [The hereinafter set Owner preliminary request for the denied hereby grants [Time to TeleCable ums] found that Time Warner had junction and right, permis- license and Warner] home run wires legal right only to the install, maintain such operate sion to of current Time running apartments [Time of the facilities as TeleCable War- at 1268. For the Id. in or Warner subscribers. necessary or desirable ner] deems (45) days 76.804(c) forty-five fol- injunction within provides "[t]he 2. 47 C.F.R. (a) (b) paragraphs enjoining displace- procedures lowing notice set forth the initial apply unless and until the of this section shall ment.” ruling a court or incumbent obtains 1044 apartments A running
home run wires non-subscribers, court the district found State law claims3 before feder 76.804(b), invoke'§ could that The Atriums supplemental jurisdiction al court on are Time Warner to aban- thereby requiring law, governed state Olcott v. Del. Flood don, sell, (10th home run Co., remove those wires. 1115, Cir.2003), 327 F.3d 1126 appeals. and we review a federal district court’s Id. at 1269. Time Warner
determination of state law de novo. Salve
Russell,
225, 231,
Regina
v.
499
Coll.
U.S.
II
(1991).
1217,
111 S.Ct.
1045 Last, Time Warner. be- against In construed avoided. should be contract pose of the agreement affected the Kansas this license Villa, (quoting cause F.3d at 803 re 146 DeLorean, interest, liberally 7 the court public v. & Trust Co. Bank State (1982)). 343, 246, public. contract to favor the 640 P.2d 349 strued the Kan.App.2d should be agreement provisions All party disputes that Neither each harmony with “together read agreement, and drafted the Indust., Inc., Farmland Berry v. other.” law ambi agree under Kansas we (D.Kan.2000) 1150, 1157 114 F.Supp.2d agreement in the is to be construed guity County, Kansas re Cherokee (quoting In Stores, drafter, Dep’t Dillard against the Bonds, 262 Facility Revenue Health Care Accordingly, we will do so P.3d at 363. 13 (1997)). 83, a 941, 91 Where Kan. 946 P.2d agree that appropriate. We also where those ambiguous, are terms contract’s public agreement affects this against strictly construed terms should be liberally should therefore be interest and the non- liberally toward the drafter construed, appropriate, to favor where Stores, Inc. Dep’t Dillard drafting party. affecting the public’s public.4 “[CJontracts Res., Kan. Human 28 Dept. Kan. v. liberally interpreted generally are interest (2000). 229, 13 363 P.3d App.2d Farmland public.” Simon v. to favor our appeal argues The Atriums (D.Kan. Inc., Indus., F.Supp. be the contract should interpretation of 1980) (citation omitted); Restatement (1) by three factors: Time War- informed (1981) (“In (Second) § 207 of Contracts (2) agreement; ner drafted meanings choosing among the reasonable (3) adhesion; ment was a contract or term promise anticompetitive nature of Time War- thereof, public meaning serves is interpretation of ner’s preferred.”); 5 A. generally interest Therefore, interest. against public (rev. Corbin, § 24.25 Corbin on Contracts urges, must read Atriums 1998) (“[C]ourts favor a construction ambiguity should narrowly, any by which public [Contracts interest.... Warner, strictly against Time be construed should be is affected public interest liberally con- should be and the agreement *7 in the manner most interpreted favorable Addressing the public. to the strued favor ap rule is often public.... [T]his to the the contract between interpretation of public franchis involving plied to contracts Atriums, the dis- and The Time Warner es.”). was that its construction trict noted court contract involve the First, only does this the dis- Not factors. informed those granted to a of a license found, Time Warner trict court because case, franchise; in this contract public any ambi- license drafted the itself right The Atriums’ avail implicates be guity found therein must construed by the FCC to Second, promulgated Time be- strictly against Warner. ser- competition amongst cable encourage essentially competition was cause there in market. See the MDU providers The vices market when services cable 521(6) regu- (purposes of cable 47 U.S.C. signed licensing agreement, Atriums lations). estimates that as The FCC the con- concluded that court district in 1997, Americans resided contract, thirty million also which tract was an adhesion MDUs, approximately there were strictly and required that be the issue of whether ambiguity we need reach any we will construe 4. Because drafter, agreement was one adhesion. strictly against Time and junction boxes, 600,000 in the United States. In- and other facilities inci- MDUs Fed.Reg. 1997 WL Wiring, provision dental or related to the of its side (Jan. 2003) (to (“the 704275 at be Project *61018 in services tenants 76) (“Final Rule”). facilities”) pt. codified at 47 C.F.R. in order to ten- serve those Moreover, city Park when the of Overland ants of Owner who [The Atriums] shall Warner, it in its licensed Time considered from time to pay time TeleCable [Time grants franchise whether the franchise services; Warner] City “provide[s] to the residents of the D. recognizes Owner [The Atriums] useful and desirable service for the benefit [Time TeleCable (I of the public welfare of the residents.” Pay of cable television and TV Warner] 104.) App. Finally, at both the Everest Project service to tenants is of grants and Time Warner franchise are Atriums], benefit to Owner [The subject city regulation of the services accordingly, [The Owner is Atriums] (See, id.; provided charged. e.g., and rates willing grant permis- the license and 88.) 48; App. I I at App. Given this sions hereinafter set forth: evidence, we conclude that this contract NOW, THEREFORE, the parties here- public affects the ap- interest and where agree as follows: we will propriate, accordingly. construe 1. Subject to the terms and conditions The Atriums contends under such a out, hereinafter set Owner Atri- [The reading agreement granted the license hereby grants ums] to TeleCable [Time right provide right, permis- Warner] the license and tenant; therefore, television to if install, sion to operate and maintain such Time actually providing Warner is not ca- of the facilities as [Time TeleCable War- tenant, ble television to such it retains no necessary ner] deems or desirable or legally enforceable to maintain any on the Owner’s property [The Atriums’] wiring to that tenant’s residence. Time Project order to that, Warner counters when read as a Pay CATV and TV services to tenants in whole the unambigu- is Project. TeleCable [Time Warner] grants ous and Warner a shall Project have the to enter the to maintain all of its perform time to maintenance on Atriums, home run wires at regard- repairs make and replacement of less of whether the home run wires are facilities, thereof, any part and to currently in use Warner to install or disconnect customers. vide cable television to tenants. 2.... agreed It the facilities respect With question *8 installed TeleCable in [Time Warner] whether Time legally Warner retains a Project or elsewhere on Owner’s enforceable to maintain its home run [The property Atriums] shall be and re- Atriums, wiring at following The claus main the sole and property exclusive agreement es the license between Time TeleCable [Time and shall be Warner] and The particularly Warner Atriums are treated personal property of TeleCa- relevant: [Time ble for all purposes. Warner] (I 17-18.) App. at PREMISES: mind,
These considerations in we must C. [Time TeleCable Warner] desires to determine whether Time Warner retains a install, operate cable, and maintain its under its license only vice to current to maintain all of its home extends subscribers of agreement The district court wiring in The Atriums. Time Id. at Warner. part upon in section C relied appeal, On Time Warner contests the of the license “PREMISES” interpretation district court’s of the license
which states: (1) agreement grounds: on three main to in- TeleCable desires [Time Warner] (2) agreement unambiguous; the clear cable, stall, operate and maintain its language supports Time Warner’s inter- boxes, junction other facilities inci- (3) pretation agreement; provision dental or related to the of its interpretation district court’s results in ab- (“the Project to tenants in the services First, surdity. argues Time that Warner facilities”) in ten- order- serve those ambiguous, is not and that ants of Owner who shall [The Atriums] parties’ easily intent is in determined pay from time to TeleCable [Time time agreement; the context of the entire that Warner] services[.] its intent, contends, Time Warner was to (I 17.) Accordingly, the district App. grant Time maintain Warner license to granted that the license court concluded Atriums, all of its home run in The to maintain Time Warner its including wiring, anticipa- unused home in only providing facilities when it was ser- tion of offering its services to tenants Reasoning “provide” vice to tenant. Bolstering argument does not mean that Time Warner can the future. its in anticipation offering “store” its wires parties’ this reflects the tenants, services to new the district court tent as measured when the was “provide” determined that limits Time entered into in Time Warner draws only rights to those home run Warner’s our attention to the fact that for the fifteen currently in use years following entry its into the Warner, F.Supp.2d subscribers. Time ment, The Atriums Time allowed Warner result, at 1267. As a the court deter- wires, to maintain all of its home re- mined, simply Time has no license Warner gardless particular apart- whether pertaining running to the home run wires ment’s tenant was a current subscriber. apartments currently subscribing to However, objection ignores this The Atri- Time Warner’s cable television services. ums’ contention that Time Warner was the addition, In court district reasoned only available cable services phrase that the “in order to serve those Park when the was Overland who from tenants Owner shall time therefore, The Atriums could not signed; pay time for its [Time Warner] services” is sought have to allow another against ambiguous and best resolved buy run wires or use Time Warner’s home periodical- Warner to refer to tenants who building. cable service (i.e. ly pay monthly) Time Warner for its is the fact that Everest was Also notable Finally, Id. the district court services. granted a license offer cable services main- concluded while year Overland Park before li- ownership wiring, tains of unused sought Atriums to introduce Everest as a cense extends to the of cable *9 competitor building. in the to Time Warner services; clearly because Time Warner result, As a we consider Time Warner’s provide to services to ten- cable year argument that The fifteen Atriums’ services, requested ants who have not such in acquiescence Time Warner’s exclusive ability agreement its under the license to of cable services as inconclusive provide provision maintain facilities order to ser- provide to cable a license order intent.5 Warner parties’ evidence of (See Agree- License services. television Second, argues Time Warner (“TeleCable desires Warner] [Time ment C granted it agreement of the language clear install, ... facili- and maintain operate to maintain such and operate to provision of incidental or related to the ties necessary or desirable for facilities as ... to tenants order serve its services to cable provide able to to be Atriums] who [The those tenants Owner of The Atriums. to the tenants services pay TeleCable from time to time shall clearly contemplat- agreement Because services”) Dand for its Warner] [Time would retain owner- that Time Warner ed (“Owner recognizes that the Atriums] [The to given and was access ship of the Pay and of ... cable television provision facilities, because, ac- those and maintain ... is of benefit to service to tenants TV Warner, provi- numerous cording to Time Atriums], accordingly, and [The Owner contemplate in the license sions willing grant is [The Atriums] Owner continually supplying not be that it would hereinafter set units, permissions the license and it that the to all insists cable services 17.) forth”), I The installation and grants App. it a le- unambiguously express- is right to maintain all the maintenance of the cable gally enforceable primary The district court’s inter- to the ly home run wires. incidental and related stresses, improp- pretation, Time Warner provision of the license—the purpose “in phrase order erly emphasizes to tenants of The Atriums. cable services of the oth- expense at the provide” service Indeed, tenants “in order to serve those fact, agreement. In Time er clauses of the pay ... from time to time Tele- who shall “in provide” order to insists that the seems best read mean Cable” “descriptive clause” which a mere was limited to the maintenance of license is reasonably be read to limit the “cannot provision of cable wiring related granted.” (Appellant license term of the services to current Time Warner subscrib- 26.) Br. at simply persuaded are ers. We focusing the district court was incorrect li- disagree; contrary, We primary purpose on the of the agreement’s purpose clearly stat- cense provision ment —the of cable services—in section of the ed in the “PREMISES” i.e., analysis.6 grants The Atriums Suggesting provision cable 5. that The Atriums would not have tioned on the Moreover, services. above, demanded Time Warner remove unused as noted in the event of wiring, accordingly strictly ambiguity and that The Atri- be read must objected against ums would not have to an uncondi- Time Warner. license, suggests tional the dissent that the argues grant that our reliance on lan- should be read to Time War- The dissent However, guage preamble of the contract is erro- ner an unconditional license. emphasis agree unjustified with the dissent that The Atriums would neous and leads to an purpose costly purpose- of ca- not have demanded the contract — Atriums. less removal of in the absence of an ble TV services to tenants Notably, emphasis preamble’s alternative cable because it would plainly against echoed in the num- have been its self-interest. vision of cable services is However, contract, i.e., explains just provisions this observation bered "install, operate persuasively why not Warner has the Time Warner would of the facilities as War- [Time have demanded an unconditional maintain such viz., necessary was deems or desirable in order ner] when the contract entered into — Thus, Pay unnecessary. TV services to ten- would have been the li- CATV 17.) (License reasonably being Agreement App. I more read as condi- ants.” cense is *10 Next, argues that building Time Warner the dis- Warner to enter the peri- to those required ods to start and interpretation stop trict court’s the contract service.7 in that absurdity logical leads to Further, subsection ofC the license reading clusion of its is Time War- installation, conditions the op- license each time a tenant ner’s vanishes eration, and maintenance of cable out, a tenant cancels subscrip- moves (See of cable services. Warner, tion or a tenant with Time choos- C, 17.) Agreement, License I App. at The a competing only es cable service. Not do installation, operation, and maintenance of disagree with Time Warner that is for purpose the sole district court’s of the con- “serv[ing] those tenants ... who shall absurd; tract is we consider it to be the from pay time to time [Time for Warner] First, clause, interpretation. Nothing most reasonable its services.” Id. in this or any agreement, other clause of the agreement explicitly provides implies install, that Time Warner has a license to during Warner access The Atriums operate, or maintain wiring any periods pur- transition such as the installation pose other than providing cable television cancellation of services. “TeleCable services, any nor is there indication that shall have the [Time Warner] to en- Time Warner could provide refuse to Project ... cable any ter the at time to install or services, yet television (License continue to main- Agree- disconnect customers.” fact, tain its In 17.) wiring. section 1 of the ment, 2, Thus, App. I the license reiterates that the li- anticipates subscriptions to cable ser- granted cense is “in provide order periodically vices will be entered into and Pay CATV and TV services to tenants” of cancelled, provides for that eventuali- (License The Atriums. Agreement, I ty. If Time Warner had a to enter 17.) App. at any The Atriums at time to maintain un- wires, used unnecessary would be Additionally, Time required, Warner is include clause that ensured that it had sell, under regulations, the new FCC access to The Atriums to start stop abandon, or remove home run wiring service, for simply Time Warner could en- which it lacks a ter at any wiring. time to maintain 76.804(a) (b). maintain. See C.F.R. & Moreover, the installation clause makes result, reading As under our li- perfect sense when the is read cense should a tenant cancel indicated, wit, as the district court Warner, service with Time Time Warner Time Warner’s license to maintain the would have to sell its lines to a competi- wires extends to those wires which Similarly, tor.8 if the tenant then can- currently are provide use to cable televi- subscription celled its with a competitor, services, sion and that the installation and wished to subscribe with Time War- ner, clause granted extends the license to Time that competitor would then be obligat- added.) (emphasis scope Pay of the contract TV services to tenants" of The Atriums. purpose is (License therefore limited 17.) Agreement, App. I Given provide contract —to cable TV services—in express provision, sugges- this the dissent's operative just sections as it is informed reading tion that our would not allow purpose preamble. Warner to install cable in the absence subscription unpersuasive. of a agreement specifically grants 7. The license "permission to install [its wiring. 8. Or abandon or remove its home run equipment] in order to CATVand *11 1050 only particular to a unit when under lines to Time Warner
ed to sell to that recognize providing cable services We Warner is regulations.9 in existence regulations were unit. FCC’s into the parties entered time the however, as demonstrated
agreement; B anticipated that above, itself the license premises to enter the Time Warner’s the dis Having decided it was on whether be conditioned would interpretation trict of the license court’s particular to a service actively providing correct, we turn to wheth agreement was interpreta- that our unit. We observe properly interpreted er the district court following the even of the tion wiring regulations home run the FCC’s regulations, re- of the FCC promulgation deny request perma Warner’s and tenable outcome. logical in a sults enjoin invoking from nently The Atriums Finally that Time Warner’s we note 76.804(b). procedures outlined the same fault it suffers from terpretation interpreta court’s review the district We present reading; specifi- to the attributes novo, regulations tion of federal de United out cally, agreement it reads clauses of the (10th Brown, 1200, States v. 348 F.3d 1208 read- of existence. Under Time Warner’s Cir.2003), general rules of statu applying a license to maintain ing, it would retain construction, tory beginning plain with the if providing even it was Valley Camp language regulations. of the services to resident cable television Utah, Babbitt, 1263, 24 1270 Inc. v. F.3d of Atriums, or it were to lose its of The if (10th also, Cir.1994), In Aspenwood see Park. Time rights franchise Overland Martinez, 1256, vestment Co. v. 355 F.3d would therefore Warner’s (10th Cir.2004). statutory 1261 As with agreement phrases read out of the construction, in interpreting regulations, to the “facilities incidental or related that all we strive to construe the text so vision of its services to tenants provisions given part are effect and no tenants ... who shall order to serve those APWU, superfluous. is rendered AFL- pay [Time Warner] time to time from (2d Potter, CIO v. 343 F.3d 626 Cir. ”, “in order to its services CATV 2003). Additionally, regulation must be (License Pay TV services to tenants.” interpreted way as to not conflict such C, 1, I Agreement App. (emphasis 17 objective organic with the of its statute. added).) Labor, Joy Technologies, Inc. v. Sec. 99 overriding purpose conclude that the We (10th Cir.1996). F.3d 996 provision of the license was the proper stage analysis, To set the for our to the cable television services residents briefly we review the context under which Atriums; any interpretation the federal were enacted. The which would allow the wiring regulations at issue were to continue without the developed auspices under the of the Cable directly contrary cable services is Protection Television Consumer and Com- purpose and must be Act, 102-385, petition 106 Pub.L. Stat. Consequently, agree with disfavored. (1992), which instructed the FCC to the district court that the license promulgate rules which would “enable grants ment en- maintain utilize the with an alter- forceable its home sumers to wiring. 9. Or abandon or remove its home run *12 delivery system disposition multichannel video of home run wiring
native
in the
any disruption the removal of
upon
and avoid
MDU
the termination of the con-
may
H.R.Rep.
76.804(d).
wiring
such
cause.”
No.
Thus,
§
tract.” 47 C.F.R.
(1992).
102-628 at 118
See 47 U.S.C.
attempt
rules
to
impediment
remove an
to
544(i) (directing
prescribe
§
the FCC to
competition among
providers
cable
in mul-
regarding
disposition
of cable
rules
tiple dwelling units —the reluctance of
service).
of
wiring upon termination
MDU owners to allow the installation of
“The new rules were intended to foster multiple home run
alternative
opportunities
pro-
video
multichannel
cable service
providers
their buildings
(‘MVPDs’)
gramming
distributors
due to
regarding
concerns
aesthetics and
multiple dwelling
service in
unit build-
vide
possible property damage, disruption and
(‘MDU’s’)
ings
by establishing procedures
residents,
inconvenience to
space
regarding how and under what circum-
straints. See Final Rule at
“By
*61018.
existing
wiring
stances the
cable home run
facilitating
entry
providers
of new
into
made available to
would be
alternative vid- MDU communities” the cable
wiring
inside
providers.”
eo service
First Order
FCC
rules are intended to
Congress’s
advance
Report
on Reconsideration and Second
provide
directive to
a “pro-competitive, de-
Order,
In the Matter
Telecommuni-
regulatory national policy framework” to
Wiring:
Imple-
cations Services Inside
encourage
provision
“advanced
mentation
the Cable Television Con-
formation technologies and services to all
sumer
Competition
Protection and
Act of Americans.”
Report
FCC Second
1992;
Wiring,
Cable Home Run
Dock-
CS
*1344.
95-184,
92-260,
et No.
MM Docket No.
(Jan.
2003)
Section 76.804 of the “cable
inside wir-
2003 WL
*1343
(“FCC
ing
disposition
rules” addresses the
Report”);
Second
47 C.F.R.
(Definitions).
§
Moreover,
wiring.
§
47 C.F.R.
76.800
76.804.The
“adopted
parts:
rules were
for the
rule is divided into two
purpose
building-by-
facilitating
competition
building disposition
between
of home run wiring
(subsection
among
Competition
(a)),
MVPDs.
is welcome.”
and unit-by-unit disposi-
(subsection
Report at *1355.
(b)).
FCC Second
wiring
tion of home run
76.804(a),
§
building-by-build-
Under
competition,
To foster
the home run wir-
section,
ing
program-
multichannel video
ing
procedures
rules establish the
used
ming
(“MVPD”),
distributor
which does
sale, removal,
require “the
or abandon-
legally
right
have “a
enforceable
wiring
ment of home run
in MDU’s where
remain on
premises
against
provider
longer
the incumbent
no
an
multiple
wishes” of the
unit
dwelling
building
to remain in the
(“MDU”)
owner,
building
upon
must
re-
units,”
particular
or serve
and the MDU
ceiving notice from the MDU that it in-
owner intends
either
terminate service
procedures
tends to invoke the
of this sec-
building
the incumbent for the entire
or
tion,
wiring
either remove all the
run
to allow more than one
compete
MVPD to
MDU,
inside the
abandon
run
the home
wiring
unit-by-
to use the home run
on a
it,
*1344;
wiring
disabling
without
sell the wir-
unit
Id. at
basis.
47 C.F.R.
(b).
76.804(a)
ing
building
§
&
owner.
C.F.R.
new home
76.804(a)(1). Thus,
the home run
require
rules also
“[a]fter
rule,
regulations
building
effective date of this
shall
allow a
owner under
MVPDs
single
include a
all service contracts
contract
incum-
exclusive
with
into with
provider
entered
MDU owners for the
bent
to contract with a new cable
long
as a
“retains
ser-
found that as
exclusive
company
services
so much as one cus
if
incum-
to service
building
the entire
vices
building”
en-
the home
longer has
tomer
bent
(b)
76.804(a)
&
premises.
to remain
forceable
—are
—both
incumbent,
circumstances,
Inc. v. West
inapplicable.
Holdings,
CSC
such
Under
*13
Condo.,
al,
cable service to
et
providing
Terrace at
longer
chester
who is
Crisfield
(S.D.N.Y.2002).
selling,
option
has the
248
building,
F.Supp.2d
235
us,
run
removing its home
to the case before
abandoning,
Applying
logic
or
this
argues that because it re
wires.
provide
to
cable services to
tains
section,
unit-by-unit
Under
subscribers,
in
The Atriums can
current
76.804(b),
options regarding
§
the same
nor
building-by-building
neither the
voke
wiring are found:
run
the home
wiring regulations.
run
unit-by-unit home
remove, abandon, or sell its
must
MVPD
varies
This subsection
wiring.
home run
that the home
support
To
its conclusion
obligation
trig-
in that the MVPD’s
only
in
wiring regulations
apply
run
do not
from the
it receives notice
gered when
pro-
where the incumbent cable
situations
legal-
not “have a
if the
does
MDU
MVPD
right
to service at least
vider retains
any par-
to maintain
ly
right
enforceable
building,
the CSC
one subscriber
par-
dedicated to a
ticular home run wire
paragraph 69
Holdings
upon
court relied
against the
premises
unit on the
ticular
Report and Order and Sec-
of the FCC’s
47 C.F.R.
owner’s wishes.”
MDU
Proposed Rule-
ond Further Notice10 of
added).
76.804(b)(1)
Thus,
(emphasis
§
in
Matter of Telecommunica-
making
the owner could
provision,
under
this
Wiring,
Inside
1997 WL
tions Services
competition
among
to
allow
choose
1997)
(Oct. 17,
644031, FCC No. 97-376
in
provide
service
MVPD’s for the
(“FCC
Notice”).
Second Further
See CSC
unit, if
has no
the incumbent
individual
Para-
Holdings,
F.Supp.2d
235
248.
maintain the home run wire run-
right to
explicit reservation
graph 69 reiterates the
unit.
ning
particular
to that
Under this
specifically
regulations,
contained
services
regulation more than one cable
wiring provisions
that the home run
“will
competing
provider
present
will be
apply
not
where the incumbent
building.
within an individual
contractual, statutory
has a
or common law
wiring
maintain
run
right to
its home
pur
for our
The relevant
issue
property.”
FCC Second Further No-
76.804(b)’sunit-by-unit
poses is whether
¶
(Application
tice at *3693 69
Procedur-
case,
provisions
apply
given
should
this
Framework).
addition,
report
In
al
conclusion
does not
our
“adopt[s] specific
states that the FCC
main
have a
sale,
requiring
cedural mechanisms
re-
wiring
tain home run
to units to which it
moval or abandonment of the home
One feder
does
cable service.
(1) termi-
wiring where the MDU owner
al district court has addressed
similar
building
for the
nates service
entire
its conclusion is not
Although
situation.
wiring
for an
us,
wishes to use the
binding on
we consider
some
(2)
Holdings,
provider,
In
court
alternative video service
detail.
CSC
the district
multichan-
permit
for the
District of New York wants to
more than one
Southern
report
ing proposed telephone and cable
10. The FCC Second Further Notice is a
¶
and order issued to address concerns raised
rules. See FCC Second Further Notice
rulemaking regard-
proposed
the notice
every
distributor must read the
such that
programming
nel
video
(“MVPD”)
Potter,
for the
to use
compete
operative.
word is
See
343 F.3d at
unit-by-unit
626;
States,
on a
ba-
the home
Finley v. United
123 F.3d
¶ 2
Further Notice
(10th Cir.1997)
sis.” FCC Second
(stating
that we
The correct
*3661-62.
“in
must construe statutes
such a manner
according
Holdings,
language,
this
CSC
every
operative
word
some
has
ef-
that neither the
leads to the conclusion
fect”).
result,
reject
As
the CSC
unit-by-unit regula-
building-by-building or
Holdings interpretation
limiting
76.804
applies,
against
even
the MDU own-
tion
those circumstances where the in-
wishes,
long
has a
er’s
as
incumbent
been,
cumbent
or will be im-
legal right
to maintain its home
ejected
minently,
from the building.
subscriber,
because the incumbent
*14
view,
convincing,
More
in our
is the dis-
right
prem-
to
on the
maintains the
remain
trict
regula-
court’s
provision.
ises under either
tions in the instant
agree
case.11 We
that
disagree with this conclusion. The
We
building-by-building
under the
regulation,
76.804(a)
language
§
of
&
plain
47 C.F.R.
provider
where the incumbent
retains a
(b)
(a),
provi-
demonstrates that under
the
right to remain on
premises,
regu-
the
the
apply
provider
sions
when the cable
“does
lation cannot
its terms be invoked.
legally
right
not ... have a
enforceable
to
”
amply supported
This conclusion is
premises
(emphasis
remain on the
add-
76.804(a)
only by
plain language
§
the
of
ed)
(b),
provisions apply
while under
the
(§ 76.804(a)’s provisions apply
the
when
provider
when the cable
“does not
...
provider
legal-
cable
“does not ... have a
right
a
to main-
legally
have
enforceable
ly
right
enforceable
remain
the
any particular
tain
home run wire dedi-
”
added)),
premises
(emphasis
but is also
unit,”
particular
(emphasis
cated to a
supported by the FCC Second Further
added).
view,
Holdings
In our
the CSC
Notice, which makes clear the distinction
reading
provisions.
conflates these two
building-by-building
between the
unit-
and
conclusion,
logical
if the
Taken
by-unit
Specifically,
context.
it states
right
prem-
has a
to remain on the
MVPD
context,
building-by-building
the
“[i]n
the
subscriber,
ises to serve even one cable
a
procedures
apply
will not
where the
building
may
provi-
owner
invoke neither
provider
cumbent
has a
enforce-
regulations.
sion of the
an in-
Under such
right
able
to maintain its home run
moreover,
terpretation,
unit-by-unit
the
unit-by-unit
In
premises....
on the
the
only
the
apply
would
when
context,
procedures
apply
the
will not
any
MVPD has lost
“to remain on
legal-
a
provider
where the incumbent
premises.”
reading
the
This
contravenes
76.804(b)
ly
keep
particular
a
§
specific language
the
of
and
76.804(a)
particular
home run wire dedicated to a
language
reads the
into
76.804(b).
above,
...
premises.”
As noted
unit
FCC Second
interpret
we
¶
language
regulations
the
we construe
Further Notice at *3693 69. This dis-
statutes;
language
accordingly,
again
the
tinction is
reiterated in the FCC’s
Coxcom,
analysis
regulations
11.
In
Inc. v. Picerne Real Estate
the federal
reveals that
Group,
(R.I.Super.2003),
right to to a solely dedicated circumstance, building ing; in that from the who switches back subscriber *15 negotiate with oth- free to owner becomes provider to the incumbent. alternative enter an into providers er cable ¶ the allowing provider a new ment under Consequently, Id. at 49. *3685-86 building a new ser- the entire “convert an MDU unit-by-unit regulations, the once Further No- provider.” vice FCC Second properly owner notified incumbent ¶ tice, 39. provider, *3680 which not have cable service does right to its maintain however, regulation, unit-by-unit The any unit on wiring particular home run limited to situa- to be not intended intention to allow head- premises, the provider no where the incumbent tions ca- competition to-head in the any legal right to service longer has a building, the ble services the incumbent building. FCC’s dis- The customer a deter- provider must make cable services Disposi- for the of the Procedures cussion the home dispose mination of how it will Wiring this Run bolsters tion Home wiring, abandon wiring: run remove the Notice at *3680- FCC Second conclusion. wiring. the the or sell wiring, ¶ report explains that the 39-68. provider’s the incumbent elec- procedures reg- Notably, underlying purpose immediately as to all of wiring run tion is not effective disposition the home ulating rather, home run competition wiring; and consumer the incumbent’s “promote is to of, disposed certainty run will be by bringing choice order and home election, run to the incumbent’s disposition according of the MDU home wir- the arises, i.e., Id. at the need as individual tenants upon termination of service.” ing ¶ unit-by- elect to cable service with the discussing the terminate *3680 39. When al- begin service the report the instructs incumbent with disposition, unit provider. cable See allows an owner to ternative regulation the MDU 76.804(b)(3); § “in Second Further competition the Notice permit head-to-head ¶ Further, pro- the alternative to use individual *3688 building for the as to the unit.” also make an election dedicated to each vider must home ¶ may any disposition of home 49. After the owner Id. *3685 MDU own; thus, sells to the if the incumbent the incumbent cable service has informed provider, pro- the alternative owner has unit-by-unit regula- alternative invoked the ¶ dispose must decide how it will tion. Id. at vider *3688 54. it owns should of its Finally, we note that the FCC refused to and, terminate service for ex- subscribers require the incumbent service ample, resume service with the incumbent. remove wiring, its home run when removal 76.804(d). scenario, this
See Under incumbent, was option selected unit-by-unit that in the anticipated FCC service, when a subscriber terminated but context, individual subscribers would have did not indicate it switching was to an opportunity to switch from the incum- alternative provider. service See bent to the alternative provider, 76.804(b)(4). The FCC Second Further that this transition would not be man- but Notice explains cases, that “[i]n such we do datory, building nor would the entire be not believe that it appropriate would be simultaneously. It switched follows that sell, require remove, the incumbent to unit-by-unit regulation anticipates that abandon the run wiring when it provider may the incumbent still be might every have expectation reasonable viding building, contempo- services in the that the request next tenant will its ser- raneously competition and in the al- with vice.” FCC Second Further Notice at provider. ternative This differs from the ¶ Again, *3688 56. it is clear that building-by-building provision, which does regulations do anticipate that the in- not contemplate continued cable service provider, cumbent unit-by-unit from provider, the incumbent but address- text, has lost all rights es complete cessation of service Rather, service to building. tenants incumbent, replaced by to be an alterna- accommodate both the provider. tive service *16 provider cumbent and pro- alternative vider who subsequent enters to the build- Explaining precise process further the ing owner’s invocation of unit-by-unit the contemplated regulations, in the the FCC Therefore, conclude, regulation. based Second Further Notice clarifies the differ- on foregoing, unit-by-unit the that the reg- ence between the building-by-building ulation is appropriately invoked the context unit-by-unit and the context. In- building owner in order to allow head-to- providers, unit-by-unit cumbent under the competition head from an alternative video remove, option, will not expected be services when the ca- incumbent abandon, or sell all of their home run longer ble services has the building once the owner has chosen to maintain the competition. allow head-to-head Id. at servicing particular wires unit. ¶ Instead, *3688 54. report the notes that incumbent, the if it has chosen to remove Ill wiring, only its home run will have seven days following notification the Applying sub- this li- the scriber that the agreement subscriber intends to ter- cense regula- and the federal hand, minate service in favor of an alternative tions to the case we conclude provider, to remove the subscriber’s wir- under the between The frame, ing. Warner, This limited time reasoned Atriums and Time The Atriums FCC, adequate the is in may procedures because “unlike invoke the outlined 76.804(b) context, building-by-building C.F.R. as to the home run only required vider will be to remove a wiring subscribing dedicated to units single building home run wire” when the Accordingly, to Time Warner’s services. (3) initial construc- overlooking parties’ AF- court is the district
the decision (4) misconceiv- agreement, tion of the FIRMED. of the “access” ing the dissenting. HARTZ, Judge, Circuit the time ment, merely forth which sets can enter The during which Warner agree I with dissent. respectfully I its license. in connection with Atriums and discussion analysis majority opinion’s But wiring rules. run of the FCC’s 1. The Preamble rules of the application disagree with
I licensing I read the case because to this operative relying Rather than majority differently than the numbered of the terms —the does. “NOW, following the words paragraphs THEREFORE, agree hereto parties that Time states majority opinion The majority opinion relies follows”—the (for I refer to both shall simplicity Warner It focuses on preamble. in the language Time Warner as War- TeleCable pream- language Paragraph C ner) to maintain a license desires stating “[Time Warner] ble Atriums in The apartment wires to each ... install, maintain its facili- operate ex- is conditional—it this license but that Project ... order to ... ties as the tenant subscribes long ists so from, tenants who shall serve those Before cable service. Warner’s to Time pay Warner] to time [Time time not a think that this is why I explaining added). According to (emphasis services.” of the terms of the proper construction lan- majority opinion, emphasized I should note for maintain- that the license guage shows parties if the surprising rather would be apartment to an ing the home wire the condition that imposed had in fact periods during which limited to those agreement. into the reads majority opinion paid tenant is a subscriber apartment’s license, Time would be Without Time Warner’s services. required be and hence could trespasser, at the whim its home to remove agree. Although purpose I cannot however, Atriums, Atriums. of The agreement undoubtedly is reason to legitimate have had no would they are to the tenants while *17 cable service require Time remove subscribers, purpose that does not paid canceled an individual tenant whenever scope of the license. fully determine the sure, To be under new FCC service. purpose adequately that could be Perhaps might Atriums have regulations The to main- by terminating the license served li- restrict Time good reason to Warner’s the ten- tain the home run wire whenever The cense—the restriction would enable purpose ant cancels service. But that require Time Warner to com- Atriums by permit- properly could also be served for the providers with other cable pete license to maintain ting continuation of the of the tenants. But no one patronage wires even when the tenant cancels. those that the new were suggests cancel- despite of the license Continuation agreement the license foreseeable when from the lation would free Time Warner was executed. whimsically Atriums would risk that The wires; view, Time War- majority opinion errs in demand removal my In (1) it could then sure that preamble much into the of ner could be reading too (without (2) the need resume service failing promptly to consider the agreement, wire) if a new agreement, to reinstall the operative language clear
1057 Pay CATV and services to desired cable television. When TV tenants tenant executed, Project. continuation of agreement was the conven- the license would have served added). (emphasis (Although majority and tenants while ience of Time Warner opinion quotes Paragraph 1 when it sets harm to The causing no inconvenience or forth most of the it never ad- Atriums. language.) dresses this There can be no that dispute Time Warner deems it desir- operative look to the One must therefore keep able to its home run wire on the to determine provisions premises even after a tenant ser- cancels Indeed, scope of the license. Leaving vice. in place the wire enables to a contract does not define the preamble service to an parties; and duties of the it serves rights (or if apartment readily more the tenant interpretation. an aid in See only as tenant) new decides to resume service. FERC, 413, 71 F.3d 416 Grynberg v. could argue agree- One when the (“[I]t (D.C.Cir.1995) is standard contract ment was executed Time Warner did not clause, law that a while some- Whereas prevent need a license that would The interpretation, as an aid to times useful Atriums from ordering removal of the beyond that cannot create aris- wire whenever a tenant discon- ing operative from the terms of the docu- protection tinued service. Such at that (internal omitted)). quotation ment.” marks unnecessary time would have seemed be- ap- contract leading A treatise on law “ surely cause The Atriums would not have generally proves the statement ‘[t]he purposeless, made the destructive demand that a accepted interpretive gener- rule is that Time Warner remove the wire. But al, preliminary ordinarily clause should not argument why demonstrates precedence specific provisions take over ” have Atriums would not resisted uncon- 11 a contract.’ Williston Contracts ditional license—one that continues even (4th ed.) (quoting § 32:15 Parkhurst v. when a tenant terminates service. Ac- Gibson, 454, 133 N.H. 573 A.2d cordingly, I would read the (N.H.1990)); see Rose v. M/V “Gulf grant a license to maintain the home run (11th Falcon,” 186 F.3d Stream apartment regardless wire to an of wheth- Cir.1999) (“under Florida law ... ‘where- paid er the tenant is a current subscriber. are not prefatory as’ or other clauses bind- view, my In this construction of the ing”). if compelled ment is even the strictly against read the interests of Time Operative Language Warner. operative provision of the The relevant say To that the license is “unconditional” *18 of license is the first sentence say provide not to that the “in order to is Paragraph 1: 1 Paragraph services” clause of is [cable] Subject impor- It at meaningless. to the terms and conditions least two out, First, tant Time hereinafter set here- functions. when Warner [The Atriums] by grants right, longer provide to can no cable service—for [Time Warner] the install, permission operate example, might and to it lose its franchise —the void, and becomes so and maintain such of the facilities as license is useless reasonably necessary or de- Time could not deems Warner [Time Warner] necessary or desirable” to property “deem[ sirable in or on [The Atriums’] ][it] Second, and Project provide in order to maintain home run wires. and the 1058 understanding of the limited to ties’ license is the importantly,
more Heyen v. Hart of execution. See the time would not be Time Warner service. 1157 nett, P.2d for, Kan. 679 say, tele- 235 the license to use permitted (1984). phone service. Provision 4. “Access” Agreement of Initial Construction majority opin- the I fail to understand reason compelling additional is an There provision on the “access” ion’s reliance limiting 1 Paragraph as to construe not of sentence the second when period to the home-run-wire have 1: shall Paragraph Warner] “[Time to Time ser- Warner subscribes the tenant any time Project at right to enter the Paragraph a construction vice. Such and make re- maintenance on perform to of the contrary to the conduct would be facilities, or replacements pairs agreement’s outset at the parties thereof, and to install or discon- any part run was The home operation. on the words Focusing nect customers.” Yet the were tenants. there stalled before right “the to enter the giving Pay provide CATV “in order phrase to install or discon- Project any time Project” in the to tenants TV services customers,” majority opinion nect maintenance of applies provision would be unneces- tends that this initial also to their run wires but home “had a to enter sary if Time Warner again the first sen- quote To installation. to maintain un- The Atriums at time 1: Paragraph tence Op. wires.” at 1049. used and conditions Subject to the terms the access argument This misconceives out, here- Atriums] set [The hereinafter merely clarifies provision provision. right, Warner] by grants [Time entry onto The Warner’s install, oper- permission to license and work in con- premises perform Atriums’ as maintain such of ate and facilities thing It is one nection with its license. necessary or de- deems Warner] [Time and maintain wir- grant a license to install property Atriums’] in or on [The sirable to set the times ing, quite another Project in order to and in the premises can enter the when the licensee Pay services to tenants CATV and TV with the license. The access connection Project. only the latter issue. provision addresses added). If the “in order to (emphasis might access one Without privilege granted language
vide” limits interpret to allow access period when to Time Warner premises only at “reasonable” onto subscriber, a current then serving during regular business times —such could not have apartment to an Indeed, following hours. sentence apartment’s until the tenant been installed during the time Paragraph restricts ' Moreover, it would became subscriber. can market its ser- which Time Warner to permit for The Atriums be remarkable premises: Warner] “[Time vices to install home wire have the between the hours shall deny a unoccupied apartment but then Project AM and 5:00 PM to enter the 9:00 place if keep license to the installed wire to solicit new customers.” *19 not to subscribe. the first tenant decided construction of the parties’ agreement’s the time of the so close to probative par- strongly
execution is