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Time Warner Cable Midwest LLC v. Pennyrile Rural Electric Cooperative Corporation

United States District Court, W.D. Kentucky, Paducah Division

March 20, 2015

TIME WARNER CABLE MIDWEST LLC, Plaintiff,
v.
PENNYRILE RURAL ELECTRIC COOPERATIVE CORPORATION, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter comes before the Court on Plaintiff Time Warner Cable Midwest LLC's motion for temporary restraining order and preliminary injunction. (Docket #4). Defendant Pennyrile Rural Electric Cooperative Corporation has filed a response. (Docket #7). Plaintiff has filed a reply. (Docket #8). For the following reasons, Plaintiff's motion (Docket #4) is DENIED.

BACKGROUND

Plaintiff Time Warner Cable Midwest LLC ("Time Warner") is a cable and telecommunications service provider. To deliver these services, Time Warner must attach its own cables and equipment to utility poles across the nation. Time Warner pays rental fees to the utility companies that own these poles.

Defendant Pennyrile Rural Electric Cooperative Corporation ("Pennyrile") owns poles in several Western Kentucky counties. In 2007, Pennyrile executed a Joint Use Agreement with New Wave Communication ("New Wave"). (Docket #1-1). The agreement allowed New Wave to attach equipment to Pennyrile's poles in Logan, Muhlenberg, and Christian counties in exchange for a rental fee. In 2011, Time Warner assumed New Wave's rights and obligations under the agreement.

For approximately two years, Time Warner has objected to the rental fees charged by Pennyrile. Rental fees are generally charged per pole. Pennyrile charges Time Warner $29.97 per pole. Time Warner claims similar entities charge "in the range of $4-$12." (Docket #1). Time Warner has paid Pennyrile $7.50 per pole "under protest" while allowing Pennyrile to "cash the check without prejudicing any argument that TWC still owes additional monies." (Docket #1-2).

Time Warner[1] also petitioned the Kentucky Public Service Commission ("Commission") asking the Commission to affirm its "exclusive, broad, ' and unquestionable' jurisdiction to regulate pole attachments rates." (Docket #1). Time Warner argues that if the Commission "affirms its jurisdiction, Pennyrile and other TVA cooperatives will be required to follow the Commission's pole rate methodology." (Docket #1). This petition has been pending before the Commission for approximately two years.

Pennyrile has regularly sent Time Warner invoices for the growing difference between Pennyrile's charged rate of approximately $30 and Time Warner's paid rate of $7.50. This difference has grown to approximately $150, 000. Pennyrile sent Time Warner an invoice for this amount on January 27, 2015. On February 19, 2015, Pennyrile sent a letter which stated: "[i]f Pennyrile has not received payment in full from you by February 27, 2015 at 9:00 a.m. central standard time, Pennyrile will begin removal of all equipment and facilities attached to its poles within its territory." (Docket #1-3). Time Warner claims it did not initially receive the February 19 letter because it was sent to an address in Sikeston, Missouri. Time Warner learned of the dispute from a news report.

Time Warner now argues that Pennyrile is in breach of the Joint Use Agreement for failing to provide a thirty-day notice before removing Time Warner's equipment. Time Warner argues Pennyrile's actions will cut off "cable, Internet, and digital phone service to thousands of TWC subscribers in Pennyrile's service area." (Docket #4). Time Warner claims the publication of this dispute has "already inflicted substantial harm on TWC, including irreparable harm to its goodwill and reputation." (Docket #4). Time Warner asks for a preliminary injunction to prevent Pennyrile from cutting off Time Warner's service until the Kentucky Public Service Commission makes a ruling.

STANDARD

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); see also Summit County Democratic Cent. & Executive Comm. v. Blackwell, 388 F.3d 547, 550-51 (6th Cir. 2004). "These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together." Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). The movant "must address each of the factors regardless of its strength, and provide us with facts and affidavits supporting these assertions." Ohio ex rel. Celebrezze v. Nuclear Regulatory Com., 812 F.2d 288, 291 (6th Cir. 1987). The decision whether to grant a preliminary injunction is within the discretion of the court. Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012).

DISCUSSION

The Court considers the following factors in deciding whether to grant Time Warner's request for a preliminary injunction: (I) Time Warner's likelihood of success on the merits; (II) the likelihood of irreparable harm and the balance of ...


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