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Metropolitan Cablevision, Inc. v. Cox Cable Cleveland

January 30, 1992

METROPOLITAN CABLEVISION, INC. PLAINTIFF-APPELLEE
v.
COX CABLE CLEVELAND AREA DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 172910.

The opinion of the court was delivered by: Matia, C.J.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED.

This appeal arises out of the judgment of the Cuyahoga County Court of Common Pleas which found that the cable wiring installed in a subscriber's home by a cable television company was a fixture. Appellant finds error, and assigns this issue for our review. We affirm the decision of the trial court.

STATEMENT OF THE FACTS

Defendant-appellant Cox Cable Television Company is a cable television company with a cable franchise in the City of Parma, Ohio, as well as other communities in Cuyahoga County.

Plaintiff-appellee Metropolitan Cablevision, Inc. d.b.a. MetroTen Cablevision is a cable television company which provides "wireless" cable to the City of Cleveland, the Northeast Ohio area, including Parma, through a technology known as Multichannel Multipoint Distribution System ("MMDS"). Unlike other cable companies, MetroTen transmits signals through the air to an antenna located on the subscriber's home. MetroTen and Cox compete for cable customers in the City of Parma.

When Cox installs service in a new subscriber's home, it runs a wire from the cable pole to the house through a drilled hole in the house to the television set. If the television is not near the wall, Cox uses sach clips to attach the wiring to the baseboard. A grounding device is also used and attached to the rafters in the basement with screws. Cox runs wiring along the interior walls if necessary. When a subscriber cancels his service, Cox is under no obligation to remove the wiring unless the homeowner requests its removal in writing. (Parma Ordinance, Section 717.22.)

If a former Cox Cable subscriber switches to MetroTen, MetroTen will use internal wiring previously installed by Cox Cable to provide MetroTen's service to that subscriber. MetroTen installs its antenna and runs wiring from its antenna to the ground-block left by Cox Cable. MetroTen then uses the wiring left by Cox Cable from the ground-block to the subscriber's television set.

Plaintiff-appellee Dawn Mueller is a homeowner in Parma. After canceling her Cox Cable subscription, she refused to permit Cox Cable's removal of her internal wiring. Both Mueller and MetroTen allege that the internal wiring left in the homes of former subscribers by Cox Cable are fixtures. Cox alleges that the contract between Cox and the homeowner expressly asserts that internal wiring remains the property of Cox Cable and never becomes a fixture.

STATEMENT OF THE CASE

Appellee MetroTen filed for a declaratory judgment and injunctive relief against Cox and the City of Parma after it learned that the City of Parma by and through its Law Director had found that the internal wiring left by Cox Cable in the homes of former subscribers was not a fixture and therefor MetroTen had no right to use that wiring unless Cox gave express permission.

In its complaint for declaratory judgment, MetroTen prayed that the court find that the internal wiring was either a fixture or that Cox had abandoned the wiring. Cox counterclaimed for reasonable value of the use of its equipment. Before the hearing, MetroTen voluntarily dismissed the City of Parma from the case.

After the initial hearing the trial court made findings of fact and conclusions of law. The trial court held both that the internal wiring was a fixture and that unless Cox Cable removed the internal wiring within a reasonable time after a subscriber cancelled his service, Cox abandoned that wiring. No decision was made on Cox's counterclaim.

Based upon the holding that Cox abandons the internal wiring unless removed within a reasonable time after the subscriber cancels, Cox began removing the internal wiring in the homes of subscribers who cancelled. The trial court, realizing its earlier decision needed clarification, set the matter for another hearing. MetroTen filed an amended complaint and that amended complaint included a new party, appellee Dawn Mueller, who asked the court to enjoin Cox from removing the wiring in her home after she cancelled her Cox Cable Service.

As a result of the second hearing, the trial court found that the internal wiring was a fixture and enjoined Cox Cable from prosecuting either civil or criminal actions against MetroTen for its use of the internal wiring and from prosecuting Dawn Mueller based on her refusal to allow Cox to remove the internal wiring from her home. The court did not find that Cox abandoned the wiring. The court also dismissed Cox's counterclaim.

The trial court journalized its judgment entry on May 4, 1990. On May 25, 1990 Cox Cable filed a timely notice ...


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