Time Warner Cable Right Of Entry Agreement

In Coxcom, the Tribunal rendered two important decisions on the issue of when the incumbent MSO does not have a «legally enforceable right» to maintain its wiring, allowing the MDU owner to avail itself of FCC rules. First, the wiring installed by the historic MSO becomes the property of the MDU owner when it is considered a «device» and therefore part of the property (unlike removable personal property). Although the law of devices varies somewhat from state to state, an object is generally a device when it (1) is physically «connected» to the property; (2) adapted or applied for the same use or purpose as that for which that part of the property is intended; and (3) intends to be part of the property. In decisions relating specifically to cabling in MDU buildings, courts have classified cabling as a device if the established MSO does not remove the wiring, if it is not actively used (e.g.B. when a participant completes the service), and if the distance could not be made without damaging the property. According to the facts, the law will consider the wiring as a device (and therefore the property of the owner of the MDU), even if the ENTRY AGREEMENT of the MSO claims to retain ownership of the MSO. (An article published in the October issue of this magazine will discuss the law of so-called «permanent» ROE devices and agreements.) In Coxcom, the court`s analysis of these conditions focuses on issues relating to ownership (who owns, the incumbent MSO or the owner of MDU, the interior wiring) and access/control (who has the right to control the line or track occupied by the inner wiring). On the other hand, the rules relating to the «unit for unit» provision of indoor wiring can only be invoked if the MSO does not have a «legally enforceable right» to maintain wiring for a given participant`s home («home wiring»). The Unit by Unit rules allow a competing video provider to use existing home run cabling to offer services to subscribers who choose the competitor`s service over that of the established MSO.

Second, the wiring can become the property of the MDU owner if it is considered abandoned by the MSO. In the event that the existing wiring cannot be considered a device, the MSO is deemed to have transferred the wiring to the MDU owner if it does not comply with FCC procedures (acting within the prescribed time frame). At Coxcom, the MDU owner informed MSO (Cox) that he was using FCC procedures for competitive access to home cabling. Instead of responding to the owner`s notification by choosing to sell, abandon, or remove the wiring within the mandatory time frame, Cox turned the owner around insisting that various entry fee agreements blocked the application of FCC rules in the first place. Since Cox did not have the necessary option (sell, abandon or delete) before the deadline expired, the court decided that cox had left the peak wiring by shading the wiring, thus losing its option to sell or remove the wiring. To the extent that the interior wiring has been abandoned by the established MSO, the MDU owner can immediately assert control by providing the wiring for use by a competing PCO. The recent Rhode Island Superior Court decision of Coxcom v. Picerne Real Estate Group, 2003 WL 22048781 (R.I. Super 2003) contains probably the most comprehensive and detailed forensic analysis of the FCC`s internal wiring rules recorded.

That`s why this decision could have a significant impact on MDU owners and private cable operators («PCOs»). Coxcom is a decision of a Rhode Island Superior Court and therefore represents only the law of the State of Rhode Island. Nevertheless, choice is important for the range of themes it addresses. Overall, if you`re dealing with a recalcitrant established MSO, the message is to know your rights and aggressively assert whether the MSO refuses to cooperate within the FCC for competitive access to existing wiring in MDU buildings…