U.S. Court Rules Against 'Co-Use'


Landlords are not required to furnish competitive telecommunications providers with the "co-use" of lines in their buildings, the U.S. Court of Appeals for the Ninth District ruled last week.

The San Francisco-based appeals panel joins four other federal courts in finding that language in the federal Cable Act does not require property owners to let competitive providers piggyback on the access they have granted to an incumbent provider within an apartment building.

The ruling was issued in an appeal of a case in Mesa, Ariz. Cable America, doing business as Cable Arizona Corp., had provided service to a group of Mesa apartment complexes beginning in 1987. But when its contract expired, the property managers declined to renew the pact.

Instead, they signed a nonexclusive deal with Cox Communications Inc. in 1998. Cox asked the previous provider to remove its equipment, but when Cable America refused, Cox removed the plant.

Cable America sued in state court in Arizona, saying the action of the cable operator and three apartment owners and managers violated the Cable Act, as well as state antitrust and tort laws.

Cox and the property owners had the suit moved to federal court, where all claims but the Cable Act violation were dismissed.

Cable America argued it had installed plant throughout the buildings and asserted it had an easement with the city of Mesa in the buildings for the duration of its franchise

The defendants countered that the easement existed only from the street to the lockbox.

When the ruling went for Cox, Cable America appealed. At the Ninth Circuit, the company asserted the Cable Act authorizes "co-use" of all easements, including those in structures.

The Ninth Circuit panel noted early drafts of the Cable Act would have barred restrictions on access by a property owner, but that provision didn't make it into the final draft.

Congress also amended the Cable Act in 1992 and 1996. If other federal rulings had misinterpreted federal law on premise easement, those amendments would have addressed the issue, the panel added.

Cable America's president, Bill Jackson, did not return a call for comment last week.