Scofield v. Telecable of Overland Park, Inc., Civ. A. No. 89-4014-S

Decision Date13 November 1990
Docket Number89-4015-S.,Civ. A. No. 89-4014-S
Citation751 F. Supp. 1499
PartiesReid SCOFIELD, Plaintiff, v. TELECABLE OF OVERLAND PARK, INC., Defendant. Debbie D. ANDERSON, Plaintiff, v. TELECABLE OF OVERLAND PARK, INC., Defendant.
CourtU.S. District Court — District of Kansas

COPYRIGHT MATERIAL OMITTED

Steven D. Treaster, Lenexa, Kan., for plaintiffs.

R. Kent Sullivan, James W. Howard, Morrison, Hecker, Curtis, Kuder & Parrish, Overland Park, Kan., Frances J. Chetwynd, Paul Glist, Cole, Raywid & Braverman, Washington, D.C., for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on the parties' cross-motions for summary judgment in both of the above-captioned companion cases. Because case no. 89-4014-S and case no. 89-4015-S involve the same fundamental questions of fact and law, and seek the same relief, these cases will be consolidated for purposes of considering the parties' cross-motions for summary judgment. Fed.R.Civ.P. 42(a); Ringwald v. Harris, 675 F.2d 768, 770-71 (5th Cir. 1982); Wilson v. Watson, 309 F.Supp. 263, 268 (D.Kan.1968).

In these actions, this court is once again asked to interpret the subscriber privacy provisions of the Cable Communications Policy Act of 1984 (hereafter referred to as "the Cable Act" or "the Act"), 47 U.S.C. §§ 521 et seq.1 Plaintiffs Reid Scofield ("Scofield") and Debbie D. Anderson ("Anderson") allege that defendant TeleCable of Overland Park, Inc. ("TeleCable"), which provided cable television services to their respective residences, violated the disclosure and record-keeping provisions of Section 551 of the Cable Act. Because the court finds that oral argument would not be of material assistance in its determination of the motions before it, defendant's requests for oral argument are denied. D.Kan. 206(d).

I. Statement of Facts: Scofield

For purposes of the parties' present motions, the court finds the following facts to be uncontroverted. On February 21, 1985, defendant TeleCable of Overland Park, Inc. ("TeleCable") entered into an agreement to provide cable television service at 10745 Barton, Overland Park, Kansas to plaintiffs Reid Scofield ("Scofield"). On February 21, 1985, TeleCable began to provide Scofield "cable service," as that term is defined in the Act. The service provided by TeleCable included video programming and rebroadcast of the television broadcast signals of local Kansas City television stations. At all relevant times, TeleCable was a "cable operator" as that term is used in the Act. From February 21, 1985, until the cable service was disconnected on December 28, 1988 at 10745 Barton, Overland Park, Kansas, Scofield was a "subscriber" of the cable service provided by TeleCable. On January 6, 1989, Scofield's cable service was reconnected at another address where he is still a subscriber at present; Scofield's subscription has been continuous since 1985. During the time that Scofield received cable service from TeleCable, he never requested new, improved, or expanded cable service, except by his use of payper-view service. It is undisputed that Scofield has never given written consent or "electronic consent" (as that term is defined in the Act) for TeleCable to disclose personally identifiable information concerning him.

In this action, Scofield alleges that he never received an SPN from TeleCable when he first began subscribing to TeleCable's services in February 1985. In his amended complaint, he also alleges that he did not receive an annual notice in May 1988, as required by the Act. It is, however, essentially undisputed that TeleCable sent subscriber privacy notices annually to all of its subscribers, including Scofield, in connection with its May billing for cable service in 1985, 1986, 1987 and 1988. It is also undisputed that Scofield received and paid his May bill for cable service each year, from 1985 through 1988.

As stated above, TeleCable sends an SPN to all subscribers annually along with May bills for cable service. Actual insertion and mailing of the SPNs is done by CableData, TeleCable's billing contractor. Since prior to 1985, the process for mailing and inserting the SPNs has been automated and subject to multiple quality control procedures to guarantee accuracy and reliability. Inserts are given a reference number and "insert plans" are prepared several weeks in advance of the scheduled mailing. Billing data, stored on magnetic tap and updated every month, is used to generate bills. Cartons of inserts are delivered to inserting machines in CableData's Insert Receiving Department at the same time the printed statements for a particular insert plan are received from the laser printers. The "Insert Stager" verifies the inserts for each plan according to insert identification number. During the inserting process for each insert plan, CableData's Quality Control Group opens a random sample of envelopes to check that the proper inserts are enclosed. Further, after insertions are complete the trays of envelopes are weighed to check that all programmed inserts were actually inserted. CableData mails approximately 25 million bills for cable service each month and approximately 40 million inserts.

All pre-1989 notices sent by TeleCable to its subscribers are basically the same. The subscriber privacy notice issued by TeleCable from 1985 through 1988 (hereafter referred to as "the pre-1989 SPN"), set in eight-point type, stated as follows:

TELECABLE
Subscriber Privacy Notice
As a subscriber of cable services, you are entitled under federal law to know the following:
1. In order that we may continue to provide reliable, high quality service to you, we keep regular business records that contain your name, address, and other personally identifiable information. Such records include billing, payment and deposit records, records indicating the number of your television sets connected to cable, and the service options you have chosen. We use this information to make sure that you are being billed properly for the services you receive.
2. We consider information we keep to be confidential. We may collect personally identifiable information from you and may disclose it to a third party if (a) you consent in advance in writing or electronically; (b) disclosure is necessary to render cable service and (c) disclosure is required pursuant to a court order and you are notified of such order. (For example, we may without your consent disclose your name and address to a collection service if required to collect past due bills).
3. Unless you object, from time to time, we may also disclose your name and address for mailing lists and other purposes permitted by law. We will not disclose the extent of your viewing or use of a particular service or the nature of any transaction you may make over the cable system, but we may disclose that you are among those who subscribe to a particular service. If you wish to remove your name from such lists or limit the use of your name at any time, please contact us at the system office.
4. We may also electronically test the system from time to time to determine whether you are being billed properly for the cable services you are receiving.
5. We will maintain information about you for as long as we provide service to you and for a longer time if necessary for related business activities. When information is no longer necessary for our purposes, we will destroy the information unless there is a legitimate request or order to inspect the information still outstanding.
6. You have the right to inspect our records that contain information about you, correct any error in our information, and enforce your rights under federal law. If you wish to inspect the records at our system office pertaining to you, please contact us to set up an appointment during regular business hours.
# 4664 2/86

On January 6, 1989, TeleCable, by its agent K & W, Inc., installed new cable service at Scofield's new residence at 10193 Rosehill Road, Overland Park, Kansas. In conjunction with the installation, Scofield received another subscriber privacy notice. The parties apparently disagree regarding whether the SPN received at installation was in the pre-1989 or in the revised 1989 form. TeleCable disputes that Scofield received the revised 1989 SPN prior to a January 13 and 17, 1989, mailing of the revised notice to all TeleCable subscribers. The revised SPN (hereafter, referred to as the "1989 SPN"), states as follows:

TELECABLE
Subscriber Privacy Notice
As a subscriber of cable services, you are entitled under federal law to know the following:
1. In order that we may continue to provide reliable, high quality service and maintain adequate records, we keep regular business records that contain your name, address, telephone number, and other personally identifiable information. Such records include billing, payment, deposit, complaint and service records, records of information you have furnished to us, such as the location and number of television sets connected to cable, and the service options you have chosen. We use this information to sell, maintain, disconnect and reconnect services; to make sure that you are being billed properly for the services you receive; and to maintain financial, accounting, tax, service and property records.
2. We consider information we keep to be confidential. We may collect personally identifiable information from you and may disclose it to a third party if (a) you consent in advance in writing or electronically; (b) disclosure is necessary to render cable service and other services we provide to you and related business activities; or (c) disclosure is required pursuant to a court order and you are notified of such order. We may make your records available routinely to employees, agents and contractors to install, market, provide and audit cable service; to an independent billing house to send bills; to a mail house to send program guides; to programmers and
...

To continue reading

Request your trial
4 cases
  • Scofield v. Telecable of Overland Park, Inc., s. 91-3014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 26, 1992
    ...order granting in part and denying in part the parties' cross-motions for summary judgment. See Scofield v. TeleCable of Overland Park, Inc., 751 F.Supp. 1499 (D.Kan.1990) ("Scofield "). The principal questions before us are whether two forms of subscriber privacy notices mailed by TeleCabl......
  • Kenro, Inc. v. Fax Daily, Inc., IP 95-1077-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • April 10, 1997
    ...minimum damage awards are permissible even where there is no proof of any actual damages. Scofield v. Telecable of Overland Park, Inc., 751 F.Supp. 1499, 1521 (D.Kan.1990) ("liquidated damages are properly awardable even without a showing of actual damages"-upholding Cable Communications Po......
  • Michael v. Charter Commc'ns, Inc., Case No. 4:17 CV 1242 (JMB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 27, 2019
    ...statute of limitations, found at 15 U.S.C. § 1640(e). For support, defendant cites Scofield v. Telecable of Overland Park, Inc., 751 F. Supp. 1499, 1508 (D. Kan. 1990), rev'd on other grounds, 973 F.2d 874 (10th Cir. 1992). Similar to the claims asserted here, the plaintiffs in Scofield all......
  • Throneburg v. Charter Commc'ns, Inc., Case No. 4:19 CV 1720 RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • October 10, 2019
    ...that would impose an undue economic burden on cable systems." 47 U.S.C. § 521; see also Scofield v. Telecable of Overland Park, Inc., 751 F. Supp. 1499, 1510 (D. Kan. 1990), rev'd on other grounds, 973 F.2d 874 (10th Cir. 1992). And, § 551 was specifically meant to "create a nationwide stan......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT