Cablevision of the Midwest, Inc. v. Gross

Pfeifer, J.,

dissenting. The majority properly concedes that R.C. Chapter 4931 does not define “communications business.” However, the majority improperly goes on to include cable television companies within that general term. Pursuant to ejusdem generis, a rule of statutory construction, “[w]here general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.” Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613.

Thus, since telephone and telegraph companies are specifically mentioned in the statute, only a company in the same general class as telephone and telegraph companies should be considered a “communications business.” Also, since the broad power associated with eminent domain is being conferred on “communications businesses,” we ought to be doubly certain that a particular company is of the same class as others who have that power.

We cannot be certain what cable television may become and it is not the duty of this court to be the herald of the “hi-tech” future. At this point, cable television is of a different class from telephone and telegraph communications. Telephone and telegraph lines are essential in order for Ohioans to communicate with each other and with people outside Ohio. It is that notion of public necessity that underlies the power of eminent domain. While I may “want my MTV” (as the familiar chorus goes), I do not have to have it. At this point, cable television is essentially an entertainment delivery system between the cable company and its customer. Cable television is not a necessity, and it does not facilitate direct communication between Ohioans.

The majority points to Radio Relay Corp. v. Pub. Util. Comm. (1976), 45 Ohio St.2d 121, 74 O.O.2d 248, 341 N.E.2d 826, for the proposition that a private company may be a communications company without being a public utility. That *547is accurate, but Radio Relay was trying to escape PUCO regulatory control, not seeking the power of eminent domain. What Cablevision seeks are the powers of a public utility without the burdens involved therewith. The majority has granted Cablevision the best of both worlds. It is conceivable that Cablevision will have the power to appropriate the property of other businesses that are regulated. What will keep Cablevision from one day appropriating Ohio Bell’s excess fiber optics lines by way of the same eminent domain power that allows Cablevision to string cable lines over the property of an unwilling owner?

Protecting the broad, core freedoms of the United States and Ohio Constitutions in a modern world unimagined by the founding fathers is within this court’s function. Section 19, Article I of the Ohio Constitution states that “[pjrivate property shall ever be held inviolate, but subservient to the public welfare.” The Fifth Amendment to the federal Constitution also states that private property shall not “be taken for public use, without just compensation.”

The power of eminent domain should be slow to expand. The majority demeans our tradition of the inviolability of private property by elevating cable television to the level of the “public welfare.”