261 F.3d 871 (9th Cir. 2001), 99-17406, Cable Arizona Corp. v. Coxcom
|Citation:||261 F.3d 871|
|Party Name:||CABLE ARIZONA CORPORATION, AN ARIZONA CORPORATION DBA CABLEAMERICA CORPORATION, PLAINTIFF-APPELLANT, v. COXCOM, INC., A DELAWARE CORPORATION DBA COXCOM PHOENIX AKA COX COMMUNICATIONS, INC.; FEIGA PARTNERS LP, A PARTNERSHIP; BLDG ASSOCIATES, INC., A CORPORATION; CLK MANAGEMENT CORP., A PURPORTED CORPORATION; BERNARD/FINNEY MANAGEMENT SERVICES, INC.,|
|Case Date:||August 17, 2001|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted March 13, 2001
Counsel Robert G. Schaffer (argued) and Warren Denetsosie, Lewis and Roca Llp, Phoenix, Arizona, for the plaintiff-appellant.
David B. Rosenbaum, Osborn Maledon, P.A., Phoenix, Arizona, for defendant-appellee CoxCom, Inc.
Mark Deatherage, Gallagher & Kennedy, P.A., Phoenix, Arizona, for defendant-appellee Feiga Partners, et al.
Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding D.C. No. CV-98-01905-RCB
Before: Stephen Reinhardt, Pamela Ann Rymer, and Raymond C. Fisher, Circuit Judges.
Rymer, Circuit Judge
This appeal requires us to decide whether §§ 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 541(a)(2) -which gives cable franchisees the right to construct a cable system "over public rights-of-way, and through easements, . . . which have been dedicated for compatible uses" -allows a cable company access to individual units in a private apartment complex through easements granted to other cable providers.
Cable Arizona Corporation, which is also known as CableAmerica, is a franchised cable television service provider that brought suit against the owner of three apartment complexes in Mesa, Arizona (Feiga Partners), and CoxCom, Inc., likewise a cable service provider, alleging that they violated §§ 621(a)(2) by preventing CableAmerica from using private easements to offer cable service to residents of Feiga's apartments. The district court held that §§ 621(a)(2) allows a right of access only to easements dedicated to a public use. We now join four other circuits in holding that the Cable Act does not require access to private easements granted by a property owner to other cable operators.
As we have jurisdiction, 28 U.S.C. §§ 1291, we affirm.
CableAmerica and Cox provide cable television and information services. Both operate under licenses from the City of Mesa and are "franchises" under the Cable Act. 47 U.S.C. §§ 522(9). They provide services in the same way: each receives television programming signals by satellite at "earth stations" which are distributed to subscribers over a network of public easements and rights-of-way. From the trunk line, a "distribution line" is extended to the "point of demarcation" at the premises of a complex such as that owned by Feiga. For apartments, a "lockbox" at the point of demarcation is typically located at each building receiving cable service, and from there, the distribution line is connected to cable wire that extends into individual units within the building. Different companies can provide service to different tenants by attaching their equipment at the lockbox and directing their respective signals to particular units. However, only one cable operator's signal at a time can be directed from the point of demarcation to a specific apartment.
From 1987 to 1997, CableAmerica (and its predecessor) had cable service contracts with the Cimarron, Farmstead, and Tiburon Apartments in Mesa. Feiga declined to renew CableAmerica's contracts when they expired in March 1997, but CableAmerica continued to provide service until Feiga contracted with Cox March 1, 1998 to begin service as of August 1. This agreement gave Cox a non-exclusive easement across the Feiga apartments to install, maintain and operate its cable television equipment. With Feiga's permission, Cox removed CableAmerica's equipment when CableAmerica declined to do so.
CableAmerica then filed suit in Arizona state court alleging that Cox and Feiga had violated federal cable law, state anti-trust law, and state tort law. Cox and Feiga removed the action to the District Court for the District of Arizona.
In its Cable Act claim, CableAmerica alleges that it purchased and installed an upgraded cable system when it took over service to the Feiga apartments. The complaint avers that the system of wires running to specific apartments has been in place for years to provide essential means of access by cable operators, and that by providing the wiring system from the points of demarcation to individual tenants' apartments, Feiga dedicated easements to allow CableAmerica to do what is reasonably necessary to enjoy its easement so...
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