[Cite as Warren Hous. v. Northeast Cable, 2017-Ohio-5513.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
WARREN HOUSING DEVELOPMENT : OPINION
CORPORATION, et al.,
:
Plaintiffs-Appellees, CASE NO. 2016-T-0059
:
- vs -
:
NORTHEAST CABLE TELEVISION,
:
Defendant-Appellant.
:
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
00555.
Judgment: Affirmed.
Daniel P. Thomas, DelBene, LaPolla & Thomas, 155 Pine Avenue, N.E., P.O. Box 353,
Warren, OH 44482 (For Plaintiff-Appellee, Warren Housing Development Corporation).
Patricia Dougan, Community Legal Aid Services, First National Bank Tower, 11 Central
Square, 7th Floor, Youngstown, OH 44503, and Gary A. Benjamin, Community Legal
Aid Services, 50 South Main Street, Suite 800, Akron, OH 44308 (For Plaintiffs-
Appellees, George Kearney and Jonathan Cambridge).
Marshall D. Buck, Comstock, Springer & Wilson, 100 Federal Plaza East, #926,
Youngstown, OH 44503 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Northeast Cable Television, appeals the Judgment
of the Trumbull County Court of Common Pleas, rendering judgment in favor of plaintiff-
appellee, Warren Housing Development Corporation, and intervening-plaintiffs-
appellees, George Kearney and Jonathan Cambridge, on their Complaints for
declaratory judgment. The issue before this court is whether summary judgment is
properly entered where a genuine issue of material fact exists as to a collateral issue
independent of the trial court’s basis for rendering judgment. For the following reasons,
we affirm the decision of the court below.
{¶2} On March 20, 2015, the Warren Housing Development Corporation filed a
Complaint for Declaratory Judgment against Northeast Cable Television in the Trumbull
County Court of Common Pleas. It was alleged that, on January 29, 1991, Warren
Housing and Northeast Cable “entered into a service agreement for cable television
services to the subscribers of [Warren Housing’s] tenants.”
{¶3} Paragraph seven of the service agreement “provides for exclusive
services by [Northeast Cable] as the sole provider of any CATV or pay television system
operating on [Warren Housing’s] property.”1
{¶4} It was further alleged, “since the execution of this agreement, which is
over 24 years ago, that the circumstances have changed and that this provision should
no longer be enforceable.” Warren Housing sought a declaration that “Paragraph 7 of
the agreement between the parties be found to be of no legal effect.”
{¶5} On May 26, 2015, Northeast Cable filed its Answer to Complaint.
{¶6} On July 21, 2015, George Kearney and Jonathan Cambridge filed a
Motion for Leave to Intervene as plaintiffs. Kearney and Cambridge are tenants of The
1. The agreement states: “7. Provisions For Exclusive Services. The Owners [Warren Housing] agree
that the company [Northeast Cable] shall be the sole provider of any CATV or pay television systems
operating on the property described herein. Owners further agree there will be no erection by property
owners of any satellite receiving equipment or similar apparatus or over the air transmissions which would
by-pass the service for which the Company intends its CATV to provide. The Owners further agree not to
allow any inspection of the Company property without the presence of a representative of the Company
and further agree not to allow any other outside television distribution for profit service to be available
without the expressed prior written consent from the Company.”
2
Elms, a property owned by Warren Housing, and have had satellite dishes installed on
their leasehold properties. Both Kearney and Cambridge have received notices from
the property manager of The Elms advising them that satellite dishes are not permitted.
{¶7} Kearney and Cambridge alleged that the agreement between Warren
Housing and Northeast Cable violated the Federal Communications Act (Count One)
and constituted a contract in restraint of trade (Count Two).
{¶8} On August 12, 2015, the trial court granted Kearney and Cambridge leave
to intervene as plaintiffs.
{¶9} On January 27, 2016, Kearney and Cambridge filed a Motion for Summary
Disposition. Among the arguments raised by Kearney and Cambridge, it was argued
that Warren Housing and Northeast Cable “are prohibited from entering into a contract
the purpose of which is to obtain cable services from one provider to the exclusion of all
others by 47 CFR 76.2000.”
{¶10} On February 11, 2016, Northeast Cable filed a Motion for Summary
Judgment.
{¶11} On May 19, 2016, the trial court issued a Judgment Entry, rendering
judgment in favor of Warren Housing and Kearney and Cambridge. The court ruled that
“[i]t is clear from the language of 47 C.F.R. 76.2000 that exclusivity clauses are not
enforceable and, in fact, are null and void,” and that “Paragraph 7, the exclusivity
clause, of the service agreement between [Warren Housing] and Northeast Cable is
hereby declared to be null and void.”
{¶12} On June 17, 2016, Northeast Cable filed its Notice of Appeal. On appeal,
Northeast Cable raises the following assignment of error:
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{¶13} “[1.] The trial court erred when it overruled Northeast Cable’s motion for
summary judgment and ruled in favor of WHDC, Kearney, and Cambridge on their
declaratory judgment actions because only Northeast Cable was entitled to judgment as
a matter of law.”
{¶14} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” to be litigated,
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from
the evidence * * * that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence * * * construed most strongly in the
party’s favor.”
{¶15} A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court
conducts an independent review of the evidence before the trial court and renders a
decision de novo, i.e., as a matter of law and without deference to the conclusions of
the lower court.” (Citation omitted.) Crawford v. Notar, 11th Dist. Trumbull No. 2015-T-
0133, 2016-Ohio-3010, ¶ 20.
{¶16} Northeast Cable maintains that “the trial court erred in relying on 47 C.F.R.
1.4000 to invalidate paragraph 7 of the Service Agreement because the rule does not
apply under the facts of this case.” Appellant’s brief at 6. The Over-the-Air Reception
Devices Rule provides, in relevant part:
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(a)(1) Any restriction, including but not limited to * * * [a] contract
provision, * * * on property within the exclusive use or control of the
antenna user where the user has a direct or indirect ownership or
leasehold interest in the property that impairs the installation,
maintenance, or use of [the antenna] * * * is prohibited to the extent
it so impairs, subject to paragraph (b) of this section.
***
(b)(1) Any restriction otherwise prohibited by paragraph (a) of this
section is permitted if:
(1) It is necessary to accomplish a clearly defined, legitimate safety
objective that is either stated in the text, preamble, or legislative
history of the restriction or described as applying to that restriction
in a document that is readily available to antenna users, and would
be applied to the extent practicable in a non-discriminatory manner
to other appurtenances, devices, or fixtures that are comparable in
size and weight and pose a similar or greater safety risk as these
antennas and to which local regulation would normally apply * * *.
47 C.F.R. 1.4000.
{¶17} According to Northeast Cable, this Rule does not apply to the satellite
dishes installed by Kearney and Cambridge because “(1) the devices are not installed
‘on property within the exclusive use or control of the antenna user’ and (2) the devices
violate a legitimate safety objective.” Appellant’s brief at 4.
5
{¶18} Northeast Cable’s argument is inapposite as the trial court did not invoke
47 C.F.R. 1.4000 to justify its declaration that paragraph seven of the service
agreement is null and void. With respect to the Over-the-Air Reception Devices Rule,
the court ruled that “[w]hether there are legitimate safety concerns which would prohibit
such installations as [those made by Kearney and Cambridge] is not an issue that is
presently before this Court.”
{¶19} The trial court’s judgment was unambiguously based upon another
regulation prohibiting the execution and enforcement of exclusivity clauses in contracts
for cable services, which provides:
No cable operator or other provider of MVPD [multichannel video
programming distributor] service subject to 47 U.S.C. 548 shall
enforce or execute any provision in a contract that grants to it the
exclusive right to provide any video programming service (alone or
in combination with other services) to a MDU [multiple dwelling unit
building]. All such exclusivity clauses are null and void.
47 C.F.R. 76.2000(a).
{¶20} At oral argument, counsel for appellant raised the argument, for the first
time in the course of these proceedings and contrary to the statement on page 1 of its
appellate brief that “Northeast Cable is a private cable operator,” that Northeast Cable is
not a cable operator as defined in 47 U.S.C.A. 522(5) (“the term ‘cable operator’ means
any person or group of persons (A) who provides cable service over a cable system and
directly or through one or more affiliates owns a significant interest in such cable
system, or (B) who otherwise controls or is responsible for, through any arrangement,
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the management and operation of such a cable system”). “An issue raised during oral
argument for the first time and not assigned as error in an appellate brief is waived.”
Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 20
(1st Dist.); State v. Hamilton, 11th Dist. Ashtabula No. 2001-A-0038, 2002-Ohio-6915, ¶
17 (“an appellate court may disregard assignments of error that are not separately
argued in the briefs”). Accordingly, we decline to consider the argument that Northeast
Cable does not meet the definition of a cable operator under the Federal
Communications Act.
{¶21} The sole assignment of error is without merit.
{¶22} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, granting summary judgment against Northeast Cable, is affirmed.
Costs to be taxed against the appellant.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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Warren Hous. v. Northeast Cable
Combined Opinion