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Johnson v. Time Warner Entertainment-Advance/Newhouse Partnership

United States District Court, D. South Carolina, Columbia Division

January 25, 2016

Stanley Johnson, individually and on behalf of all others similarly situated; Plaintiff
v.
Time Warner Entertainment-Advance/ Newhouse Partnership d/b/a/ Time Warner Cable, and Time Warner Cable Southeast LLC d/b/a Time Warner Cable, Defendants.

OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 90)

Cameron McGowan Currie Senior United States District Judge

This matter is before the court on Defendants’ renewed motion for summary judgment. ECF No. 90.[1] For the reasons set forth below, the motion is denied.

Through this action, Plaintiff, Stanley Johnson (“Johnson”), seeks recovery on behalf of himself and others similarly situated for alleged unauthorized placement of cable transmission lines and related equipment (“Cable Lines”) on or under land he purchased on July 1, 2014.[2]Relief is sought under various legal theories, all of which depend on the dual premises that (1) Defendants, Time Warner Entertainment Advance/Newhouse Partnership and Time Warner Cable Southeast, LLC (collectively “Time Warner Cable”), or their predecessors in interest placed the Cable Lines on or under the Property without authorization prior to Johnson’s purchase and (2) the Cable Lines remained on the property without authorization after Johnson’s purchase.

For purposes of this order, the court distinguishes between two types of lines: “Trunk Lines, ” which are capable of carrying signals to multiple subscribers; and “Service Lines, ” which carry the signal from the Trunk Line to an individual subscriber’s residence or other individual location. Johnson’s challenge is primarily if not exclusively directed to the presence of Trunk Lines running over (and possibly under) his property.

ARGUMENTS

Time Warner Cable’s opening argument.

In its opening memorandum, Time Warner Cable advances two related arguments for summary judgment. First, it argues that placement of the Cable Lines was authorized because service was requested by and provided to a tenant of the property beginning in or around 1994 and continuing until the tenancy ended in 2002. ECF No. 90-1 at 6-7. Time Warner Cable presents the affidavit of the former tenant, Bobby Watkins (“Tenant”), in support of this claim. In addition to averring that service was requested in or around 1994 and continued until 2002, Tenant avers that the landowner authorized Tenant and his wife to take whatever action was necessary to establish the residence and obtain desired services. ECF No. 90-5.[3]

Second, Time Warner Cable argues that it was not required to remove the Cable Lines when service ended unless and until Tenant or the land owner requested removal. Id. at 7-10. This argument rests, in part, on Richland County Ordinance HR92 (ECF No. 90-7), which grants Time Warner Cable the franchise to provide cable service within the county. This ordinance includes a provision which requires removal of equipment from a subscriber’s premises without charge upon termination of service, but further states that this provision “shall not prohibit leaving the wires in place at the subscriber’s location if desired by [Time Warner Cable] and if the subscriber does not object[.]” ECF No. 90-7 at 7 (HR92 § VII. L.) Time Warner Cable argues that it was allowed a reasonable time to remove the lines after any request to do so and its ultimate offer to remove or abandon the lines to Johnson was made within a reasonable time after Johnson objected to the presence of the Cable Lines in early 2015.[4]

Johnson’s response.

Johnson’s response challenges certain of Time Warner Cable’s legal arguments and also certain factual premises. Most critically, Johnson presents a supplemental affidavit from Tenant averring that the Cable Lines from which his service was provided “were already attached to telephone poles on the property . . . at the time I contacted Time Warner Cable for service.” ECF No. 95-10 at 2. Tenant also avers that he “did not have authority to tell Time Warner Cable to remove lines from the perimeter” of the Property. Id. (emphasis added). Based on Tenant’s second affidavit and the absence of other evidence that placement or presence of Trunk Lines to serve downstream customers was authorized, Johnson argues that Time Warner Cable exceeded the scope of any authorization which may arise from Tenant’s request for service. ECF No. 95 at 17-18. Johnson also argues that Time Warner Cable’s delay in removing or abandoning the lines cannot be excused by Richland County Ordinance HR92 because placement was not authorized prior to his request that the lines be removed.[5]

Time Warner Cable’s Reply.

On reply, Time Warner Cable characterizes Johnson’s opposition as resting on the “conclusion that the presence of the wires prior to 1994 constituted a trespass, and that alone negates the impact of the customer relationship after that time.” ECF No. 97 at 2. Through this and other statements, Time Warner Cable appears to concede that lines serving customers other than Tenant may have been present on the property prior to 1994. Id. at 3 n.1 (stating it “has never suggested that the lines on the poles were brought onto the Property in the first instance to serve [Tenant].”).; id. at 5 (stating that, due to the passage of over twenty years, Time Warner Cable “cannot determine . . . whether the lines predated 1994 or whether [its] predecessor had customers on this property prior to 1994.”).

Time Warner Cable argues that the existence of the lines before 1994 is irrelevant because Johnson cannot assert a claim for trespass occurring before he purchased the Property. Noting Tenant’s claim of full authority to do whatever he wanted to establish his residence, Time Warner Cable argues that the Cable Lines “were on the Property by permission during” the period of service to Tenant (1994 to 2002) and thereafter until a reasonable time after a demand for removal was made.

Time Warner Cable also notes that Johnson “has the burden of proof to demonstrate that the lines were originally located on the Property without consent.” ECF No. 97 at 4. Thus, while maintaining that events predating Tenant’s period of service (1994-2002) are not material, Time Warner points to an absence of evidence that the original placement was non-permissive. Id. at 4-6 (also asserting that there is no legal requirement that the permission be in written form). Finally, Time Warner Cable argues that Johnson’s claims are self-defeating ...


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