Charter Communications v. COMMUNITY ANTENNA, No. 30021.

• Court: Supreme Court of West Virginia
• Writing for the Court: DAVIS, Chief Justice.
• Citation: 561 S.E.2d 793,211 W.Va. 71
• Parties: CHARTER COMMUNICATIONS VI, PLLC, Plaintiff, v. COMMUNITY ANTENNA SERVICE, INC., a corporation, Defendant.
• Docket Number: No. 30021.
• Decision Date: 22 February 2002

561 S.E.2d 793
211 W.Va. 71

CHARTER COMMUNICATIONS VI, PLLC, Plaintiff,
v.
COMMUNITY ANTENNA SERVICE, INC., a corporation, Defendant

No. 30021.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2002.

Decided February 22, 2002.

561 S.E.2d 795

Ancil G Ramey, James D. Gray, Hannah B. Curry, Steptoe & Johnson, PLLC, Charleston, West Virginia, Attorneys for the plaintiff

Robert W. Full, Goodwin & Goodwin, LLP, Parkersburg, West Virginia, Carte P. Goodwin, Goodwin & Goodwin, LLP, Charleston, West Virginia, Attorneys for the defendant.

561 S.E.2d 794

DAVIS, Chief Justice

This case presents a certified question from the Circuit Court of Wood County. Briefly stated, the question asks whether W.Va.Code § 24D-2-10 (1999) (Repl.Vol. 2001) permits an exclusivity agreement between an apartment complex and a cable television provider that violates the West Virginia Tenants' Right to Cable Services Act, W.Va.Code § 24D-2-1, et seq. We find that W.Va.Code § 24D-2-10 is repugnant to the purpose of the West Virginia Tenants' Right to Cable Services Act and is, therefore, void.

I.

FACTUAL AND PROCEDURAL HISTORY

Prior to October 2000, Charter Communications VI (hereinafter "Charter"), the plaintiff herein, had been providing cable services to twenty-two of the twenty-four tenants of Amber Hill Apartments (hereinafter "Amber Hill").¹ On October 10, 2000, Charter discovered that an exclusivity agreement had been entered between Amber Hill and Community Antenna Service, Inc. (hereinafter "Community"), the defendant in this action. The agreement provided, inter alia, that Amber Hill's resident manager would receive free premium cable services and, in exchange, Community would have exclusive rights to provide cable services to all of Amber Hill's tenants for a period of two years.² Charter learned of the agreement from several of its clients who resided in Amber Hill. The residents had received a correspondence from Community, dated October 10, 2000, announcing that Community would be providing them cable services as of October 20, 2000. The correspondence instructed the residents that, if they were currently customers of another cable provider, they needed to make arrangements for their cable service to be disconnected on October 20, 2000, so that Community could connect the customer to its service.

Charter filed suit against Community on October 20, 2000, seeking, in part, to enjoin Community from severing and/or using Charter's bundle of cable lines servicing Amber Hill.³ In addition, Charter sought to

561 S.E.2d 796

invalidate Community's exclusivity agreement with Amber Hill, arguing that the agreement violated the West Virginia Tenants' Right to Cable Services Act, W.Va.Code § 24D-2-1, et seq., (hereinafter "the Act"). The Circuit Court of Wood County initially entered a temporary restraining order enjoining Community from "cutting any wires, cables or other facilities by which cable television service is now being provided to the Amber Hills Apartments," from "using any cables installed by plaintiff [Charter] within the Amber Hills apartment or otherwise transferring cable television service customers of Charter Communications and its subscribers residing at Amber Hills Apartments...." The circuit court additionally scheduled an evidentiary hearing for October 26, 2000, on Charter's request for a preliminary injunction

Following the hearing, the circuit court concluded that the agreement between Community and Amber Hill did not violate the Act. The circuit court based its conclusion upon a provision of the Act removing mutual agreements from its terms. The provision relied upon by the circuit court states: "Notwithstanding any provision in this article to the contrary, a landlord and cable operator may by mutual agreement establish the terms and conditions upon which cable television facilities are to be installed within a multiple dwelling premises without having to comply with the provisions of this article." W.Va.Code § 24D-2-10.⁴ In accordance with its determination that the agreement between Community and Amber Hill did not violate the Act, the circuit court declined to grant Charter's request for a preliminary injunction. In addition, the temporary restraining order that had been previously entered against Community was dissolved. Charter then filed a motion asking the circuit court to certify a question to this Court regarding the enforceability of a contract such as the one between Community and Amber Hills. The circuit court granted Charter's motion and certified the following question:⁵

Where one cable operator is already providing cable television services to a multiple dwelling premises without a written mutual agreement between the landlord and the operator, does W.Va.Code § 24D-2-1, et seq., and in particular, W.Va.Code § 24D-2-10, which provides, "Notwithstanding any provision in this article to the contrary, a landlord and cable operator may by mutual agreement establish the terms and conditions upon which cable television facilities are to be installed within a multiple dwelling premises without having to comply with the provisions of this article," permit a landlord and another cable operator to enter into and enforce a mutual agreement, without obtaining the consent or agreement of all of the residents, whereby the other cable operator is given the exclusive right by the landlord to provide cable television services to all of the residents in the multiple dwelling premises, the terms of which include the other cable operator providing free services to the landlord for the term of the agreement?

The circuit court answered this question affirmatively.

II.

CERTIFIED QUESTION

It is well established that this court has the authority to reformulate certified questions.

561 S.E.2d 797

"When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va.Code, 51-1A-1, et seq. and W.Va.Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court." Syl. Pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).

Syl. pt. 1, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). In accordance with this authority, we reformulate the instant certified question as follows:

Where one cable operator is providing cable television services to a multiple dwelling premises without a written mutual agreement with the landlord, does the exception to the West Virginia Tenants' Right to Cable Services Act found at W.Va.Code § 24D-2-10 permit the landlord and a second cable operator to enter into and enforce an exclusivity agreement without having to comply with the provisions of the Act?

III.

STANDARD OF REVIEW

" `The appellate standard of review of questions of law answered and certified by a circuit court is de novo.' Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996)." Syl. pt. 2, Keplinger v. Virginia Elec. & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000).

IV.

DISCUSSION

The question certified in this action requires us to examine W.Va.Code § 24D-2-10 to determine whether it condones an exclusionary agreement between a landlord and a cable operator that presumptively violates certain provisions of the West Virginia Tenants' Right to Cable Services Act.⁶ W.Va. Code § 24D-2-10 appears to authorize such an agreement: "Notwithstanding any provision in this article to the contrary, a landlord and cable operator may by mutual agreement establish the terms and conditions upon which cable television facilities are to be installed within a multiple dwelling premises without having to comply with the provisions of this article." However, any interpretation of this provision must be reconciled with the Legislature's purpose for passing the Act.

"`"The primary object in construing a statute is to ascertain and give effect to the intent of the legislature." Syllabus Point 1, Smith v....