Goodwin LLP Towne Square, 201 Third Street T

Goodwin & Goodwin, LLP Towne Square, 2 0 1 Third Street

October 18,201 2

T (304) 485-2345

BY FEDERAL EXPRESS

Ms. Sandra Squire Executive Secretary Public Service Commission of West Virginia 20 1 Brooks Street Charleston, WV 25301

Re: Community Antenna Service, Inc. vs. Charter Communications, VI, LLC Case No. 01 -0646, -CTV-C

Dear Ms. Squire:

I enclose herewith an original and twelve (12) copies of the Objection, Petition For Reconsideration And Application For Reopening of Community Antenna Service, Inc., and Certificate of Service thereof, which I tender for filing. Also, as per your request, please note my email address is [email protected]. I thank you for your attention to this matter, and if there is anything further in this regard, please advise.

Very truly yours,

GOODWIN & GOODWIN, LLP -\

Robert W. Full (WV State Bar #4749)

RWFhw

Enclos,ures--

cc: H. Wyatt Hanna, 111, Esquire Robert G. Scott, Jr., Esquire Lisa L. Wansley, Esquire Mr. Arthur R. Cooper

mailto:[email protected]

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

CASE NO. : 0 1-0646-CTV-C

COMMUNITY ANTENNA SERVICE, INC., a West Virginia corporation 1525 Dupont Road Parkersburg, West Virginia 26 10 1 , Complainant,

vs .

CHARTER COMMUNICATIONS, VI, LLC A limited liability company 1735 East Seventh Street Parkersburg, West Virginia 261 01, Defendant.

OBJECTION, PETITION FOR RECONSIDERATION AND APPLICATION FOR REOPENING

Now comes Complainant, Community Antenna Service, Inc., (“CAS’), pursuant

to §150-1-19.3 and §150-1-19.5 of the Rules of Practice and Procedure of this Cornmission and

this Commission’s Order of October 9, 2012, and objects to said Order and petitions this

Commission for reconsideration of said Order and for reopening of proceedings in the above-

styled matter upon the following grounds and identifies the following issues that remain to be

addressed by this Commission:

1. The Commission in its October 9, 2012 Order cites the opinion of the

Supreme Court of Appeals of West Virginia in Community Antenna Service, Inc. v. Charter

Communications, VI, LLC 712 S.E.2d 504 (W.Va. 201 l).’ That opinion affirmed the judgment

of the Circuit Court of Wood County, West Virginia upon a jury verdict favorable to CAS in

Civil Action No. 00-C-505 in that Court. That case actually commenced on a complaint filed by

Charter Communications, VI, LLC (“Charter”) in October, 2000, but was tried on claims of CAS

initially asserted by counterclaim filed and served on or about November 20, 2000, alleging,

inter alia, rate discrimination and tortious interference and seeking damages arising from certain

pricing plans of Charter in franchise areas in which CAS and Charter competed, known as or

which would become designated as “CAS buy-back” plans.2 On May 11, 2001 CAS filed its

formal complaint in this case with this Commission, invoking the Commission’s jurisdiction

over the cable television industry in this State and challenging the aforesaid “CAS buy-back”

plans. The aforesaid civil action in the Circuit Court of Wood County seeking civil darnages

from Charter, which were not claims cognizable before this Commission, was eventually

effectively stayed by agreement of the parties pending a resolution of the proceedings before this

Commission. This case proceeded with discovery, a two day evidentiary hearing before an

Administrative Law Judge in June 2002 upon the aforesaid pricing plans of Charter offered

during 2000,2001 and through the dates of such June 2002 hearing, and eventually the Orders of

the Commission of February 10, 2004 and March 23, 2004. It is those orders from which CAS

appealed to the Supreme Court of Appeals of West Virginia, resulting in that Court’s decision

’ Hereinafter for the sake of brevity referred to as CAS v. Charter * Charter’s claims in such action and other claims of CAS were abandoned by the parties prior to trial and CAS was redesignated as Plaintiff in the case for its claims which remained.

2

issued June 30,2006 in Community Antenna Service, Inc. v. Public Service Commission of West

Virginia and Charter Communications Vl LLC, 633 S.E.2d 779 (W.Va. 2006).3

Following the issuance of such opinion, the parties resumed litigation of CAS’

damage claims in the aforesaid civil action in the Circuit Court of Wood County, which were

tried in February 2008 and culminated in the Supreme Court’s opinion in CAS v. Charter cited

by this Commission in its October 9,201 2 order. The litigation and trial of that case was limited

to CAS’ damage claims arising from the aforesaid “CAS buy-back” plans which were the subject

of the Supreme Court’s analysis in CAS v. PSC and the proceedings before this commission

which were the subject of such analysis, the offers and sales of which “CAS buy-back” plans

extended through at least the remainder of 2002 after the June 2002 evidentiary hearing in this

case and were admitted in evidence in the Circuit Court litigation. However, additional or

redesignated pricing plans of Charter offered and sold after 2002, but which had not been vetted

in the previous proceedings before the Commission and the Supreme Court in CAS v. PSC were

excluded upon the granting of Charter’s Motion in Limine by the Circuit Court by Order entered

November 21, 2007, a certified copy of which is attached hereto and attention is directed to

pages 7 and 8 thereof. Accordingly, such post 2002 pricing plans of which CAS complains

herein, as well as plans offered and sold by Charter’s successor after June 30, 2006, as will be

discussed hereinafter, were not part of Charter’s damage claims adjudicated in the Circuit Court

or the Supreme Court in CAS v. Charter, and remain to be adjudicated on the merits by this

Commission as hereinafter stated.

Hereinafter for the sake of brevity referred to as CAS v. PSC.

3

2. As noted above, the Supreme Court in CAS v. PSC reversed the February

10, 2004 and March 23, 2004 Orders of this Commission, finding Charter’s “CAS buy-back”

plans in evidence in that case, offered and sold in 2000,2001 and through the evidentiary hearing

in June 2002, to be unduly discriminatory in violation of West Virginia law and remanded the

case to this Commission for further proceedings consistent with such opinion. Upon such

remand this Commission, by Order dated August 10, 2006 and corrected August 16, 2006,

sought comments from the parties as to how to further proceed. After receiving such comments,

by Order of December 4, 2006 this Commission further required Charter and its successor,

Cebridge Acquisition, LLC, dba Cebridge Connections of WV, LLC, and later dba Suddenlink

Communications (“Suddenlink”), which, effective June 30,2006, had purchased certain assets of

Charter, including those located in franchise areas in which CAS competed (see Case No. 06-

0772-CTV-FA), to provide verified statements addressing “1) when the prohibited pricing plans

were last offered, 2) whether similar programs have been offered since 2003, and 3) whether

similar plans will be offered. If similar programs have been offered or are planned, the verified

statements should also explain those programs in detail, including the basis for the special

pricing.” In its February 14, 2007 Order, this Commission initially accepted the assertions of a

Suddenlink, and former Charter, employee regarding what were by then generally designated as

“win-back” plans, rather than “CAS buy-back” plans or “dish buy-back” plans, to the effect that

“the pricing plans at issue in this case have not been offered for years,” “that Suddenlink does

not offer any similar pricing plans, nor does Suddenlink plan to offer such pricing plans,”

concluded “that the controversy is moot,” and dismissed the case, although ordering that

4

“Charter and/or Suddenlink, and any successor, shall not offer the pricing plans which are at

issue in this proceeding.” Commission Order, February 14, 2007, pgs. 7, 8, 12, 13. However,

upon CAS’ petition for reconsideration submitted February 26, 2007 arguing that the declaration

and verified statements of the Suddenlink, and former Charter, employee regarding 2003 and

subsequent year’s pricing plans offered by Charter and Suddenlink, while tweaked in certain

particulars, retained many, if not most, of the same characteristics as the “CAS buy-back” plans

which had been found to be unduly discriminatory, and prohibited by West Virginia law, by the

Supreme Court in CAS v. PSC, this Commission concluded that “[Tlhis case should be reopened

to consider whether the recent pricing plans now challenged by CAS would be prohibited by the

Supreme Court’s directive,” “[Olrdered that this matter is reopened” and “[Flurther [Olrdered

that this proceeding be referred to the Division of Administrative Law Judges, for a decision to

be rendered on or before November 27,2007.” Commission Order, June 1,2007, pg. 4.

3. By Procedural Order issued June 12, 2007 in this case by the

Administrative Law Judge (“ALJ”) an evidentiary hearing was scheduled and held August 30,

2007 “to develop a factual record regarding the new pricing plans at issue . . . .” Procedural

Order, June 12, 2007. While certain pricing plans post 2002 were considered, much of the

evidence involved Charter’s 2006 “win-back” plans and Suddenlink’s 2006 and 2007 “win-

back” plans. Thereafter, the parties submitted their respective initial memoranda, proposed

findings of fact and conclusions of law and response memoranda, and the ALJ issued his

Recommended Decision November 16,2007. The ALJ concluded and ordered as follows:

5

CONCLUSIONS OF LAW

1. CAS has standing to proceed given that it is an affected party. Community Antennae, 633 S.E.2d 779, 787 (W.Va. 2006); W.Va. Code 85-18-25 (1990).

The win-back plans are not universally applied in that they are not offered to all prospective customers who are interested in the offered tiers, but, instead, are limited to customers who are currently obtaining multi-channel video services from one of Suddenlink’s competitors.

The win-back plans are not permissible promotional offerings within the meaning of the exception to the rate discrimination set forth in 47 U.S.C. §543(e) because they are not universally applied.

4. Suddenlink offers no rational basis consistent with its actual practices to justify the discriminatory nature of its pricing system.

5. The challenged plans should be prohibited and Suddenlink ordered to cease and desist from offering the plans.

2.

3.

ORDER

IT IS, THEREFORE, ORDERED that Suddenlink be, and hereby is, ordered to cease and desist from providing the challenged pricing plans unless and until it offers such plans uniformly to all prospective customers in its West Virginia territory regardless of whether or not they currently subscribe to multi-channel video services from one of Suddenlink’s competitors.

Recommended Decision, pg. 10. Thereafter, the parties each timely filed exceptions and replies

to such exceptions, and Charter/Suddenlink requested oral argument asserting that “the case has

significant importance to the cable television industry and cable television consumers in the

State.” Exceptions of Charter Communications VI, LLC To The ALJ’s Recommended Decision,

pg. 20. By Order entered February 19, 2008, this Commission determined “that this matter

presents issues of first impression” and granted such request for oral argument which was held

June 1 1,2008. Thereafter, the parties submitted their respective proposed orders on July 9,2008

6

and responses thereto July 18, 2008, and the issues raised by the parties await determination on

such record.

4. The issues which remain to be addressed by the Commission in this case

involve whether the post 2002 pricing plans of Charter and subsequently Suddenlink run afoul of

the directives of the Supreme Court of Appeals articulated in CAS v. PSC and the authority relied

upon by the Court in such opinion, as this Commission ordered June 1, 2007. Generally, are

such plans both limited in time and universally applied to constitute true promotional and

introductory offers exempt from the prohibition against unduly discriminatory rates and charges,

and if not, does a rational basis exists to justify the charging of disparate rates to different

categories of subscribers based on justifiable differences in economic benefits derived from

serving such categories of customers, or are such plans either not limited in time or not

universally applied so as to not constitute true introductory and promotional offers, and, if not, is

no rational basis established by CharterBuddenlink for such disparate charges to different

categories of subscribers based on justifiable differences in economic benefits derived from

serving such categories, so that such practices “are simply rate discrimination,” as was the case

with regard to the rate practices which were the subject of CAS v. PSC? CAS v. PSC, 633 S.E.

2d 792-795.

Decision in this case was stayed from March 27,2009 through November 30,2009 during the pendency of Charter’s Chapter 1 1 bankruptcy proceeding in the United States Bankruptcy Court for the Southern District ofNew York, from which Charter emerged on such latter date upon confirmation of its plan of reorganization November 17, 2009.

7

The more recent of the plans, which were the subject of the August 30, 2007

hearing, including those which continued to be offered at that time, are described in the answers of

Charter and Suddenlink to the discovery requests of Staff Counsel (Suddenlink Exh.3) and are as

follows:

Charter 2006 Plans:

Win Back Campaign: This plan was offered to new customers who left a competing service, including satellite and cable, from January 1, 2006 to June 30, 2006 and consisted of free installation plus the Big Value programming package for $29.99 per month for one year, at the end of which the price would increase to $54.99, or the Biggest Value programming package for $45.99 per month for one year, at the end of which the price would increase to $70.99 per month. This offer was not available for new customers who took any other tier of service, and was not available for existing customers.

Suddenlink Third Quarter 2006 Plans:

Win Back Campaign: This plan was offered to new customers who left a competing service, including satellite and cable, from July 1, 2006 to September 22, 2006, and consisted of free installation plus the Big Value programming package for $29.99 per month for one year, at the end of which the price would increase to $54.99, or the Biggest Value programming package for $45.99 per month for one year, at the end of which the price would increase to $70.99 per month. This plan was not available to new customers who took any other tier of service and was not available for existing customers.

Suddenlink Fourth Quarter 2006 & 2007 Plans:

Win Back Campaign: This plan was offered to new customers who left a competing service, including satellite and cable, September 22, 2006 to July 3 1 , 2007, and consisted of free installation plus one of the following packages: the Value Link programming package for $32.99 per month for one year, at the end of which the price would increase to $57.99; the Value Link Silver programming package for $52.99 per month for one year, at the end of which the price would increase to $77.99 per month; the Value Link Gold programming package for $62.99 per month for one year, at the end of

8

which the price would increase to $87.99 per month; the Premier Link programming package for $50.99 per month for one year, at the end of which the price would increase to $75.99 per month; the Premier Link Silver programming package for $70.99 per month for one year, at the end of which the price would increase to $95.99 per month; or the Premier Link Gold programming package for $80.99 per month for one year, at the end of which the price would increase to $105.99 per month. This offer was not available for new customers who took any other tier of service, and was not available for existing customers.

Also reflected in such answers are certain “Package Retention Offers” as follows:

Package Retention Offer: This plan was offered to current customers calling in to disconnect their service from April 1, 2007 to June 30, 2007, and consisted of any Value Link or Premier Link programming package for $10 off the regular monthly price for 3 months, after which the regular monthly price would be charged. This offer was not available for customers who took any other tier of service.

Package Retention Offer: This plan was offered to current customers calling in to disconnect their service from June 19, 2007 to July 31, 2007, and consisted of any Value Link or Premier Link programming package for $10 off the regular monthly price for one year, after which the regular monthly price would be charged. This offer was not available for customers who took any other tier of service.

According to the testimony of Stan Howell, the abovementioned former employee of

Charter, and then current employee of Suddenlink, at the August 30, 2007 hearing, the special

pricing of such plans cannot be extended beyond the discount period, although those customers who

complain or threaten to leave at the end of the discount period are offered retention offers, typically

$10.00 per month off of the regular price for such service for an additional period which he

describes as three to six months, but which the aforesaid discovery answers indicate may extend to

one additional year. Mr. Howell also testified that retention offers of some sort are made to any

9

customer who threatens to leave. (Hrg. Tr. pgs. 36-38; 68-69; 92-94.) It is also indicated that to be

eligible for “win back” pricing a customer cannot have been a Charter or Suddenlink customer for a

period of ninety days, and that one can only qualify for such pricing one time, although the record is

not clear on the extent of the tracking of such eligibility or ability to do so. (Hrg. Tr. pgs. 89-92.)

The competitors of Charter, and now Suddenlink, to the customers of which

competitive win back plans are limited in the franchise areas of the City of Parkersburg, the City of

Vienna, and the unincorporated areas of Wood County, have been and are direct broadcast satellite

providers and CAS. (fig. Tr. pgs. 29; 60-62; 66-68.) Historically, plans similar to the CAS “buy-

back” plans proscribed by the Supreme Court were made available to customers of the direct

broadcast providers. (Hrg. Tr. pgs. 62-66; see also 6/10/02,6/11/02 Hrg. Tr.) The competitive “win

back” plans are sold primarily through door to door direct sales (Hrg. Tr. pgs. 74-79.) The “win

back” packages identified above all involve the basic and expanded basic tiers of cable television

services and various other services, (Hrg. Tr. pgs. 80-83), and the Value Link and Premier Link

programming packages continued to be offered at the time of such hearing. (Hrg. Tr. pg. 83 .) None

of the “win back” offers involved or involve discounts to senior citizens or economically

disadvantaged persons, bulk discounts to multiple dwelling units, or per channel sales. (Hrg. Tr.

pgs. 85-86.) Additionally, there are no differences in the cost of providing such services to those

receiving the special pricing of the “win back” plans and others receiving the same services, nor are

there any technological differences in providing such services regardless of the pricing being

charged. (Hrg. Tr. pgs. 86-87.)

10

Charter and Suddenlink also introduced evidence of packages offered by their direct

broadcast satellite competitors, to which CAS objected, primarily on grounds of relevancy, as will

be discussed below.

The issues remaining to be determined by this Commission regarding such post

2002 plans are subject of the extensive proceedings and filings beginning in 2006 as noted in this

petition, which filings fully articulate the arguments of the parties and authority relied upon for

such arguments, and reference is made to the same. However, the following summary of CAS’

arguments provide assistance in illustrating and identifying such remaining issues.

First, it should be noted that CAS has standing as an “affected party” since it is

their customers, at least in part, who are being targeted by the plans in issue. CAS v. PSC, 633

SE2d, 787; W.Va. Code 55-18-25, Just as with the previous Charter plans, i.e. “CAS buy-back”

plans, which were the subject of CAS v. PSC, the Suddenlink plans in issue, for example, involve

different pricing for cable television services to different groups or categories of customers, such

plans offering packages of service to competitors’ customers for a twelve (12) month period at a

discount of $25.00 per month off the rate available to i) existing subscribers of Suddenlink

receiving the same package of services, ii) other noncustomers of Suddenlink who are not

customers of its competitors, i.e. other multichannel video providers, such as CAS and DBS

providers, and iii) existing customers of Suddenlink who do not receive that same level or

packages of service, but who switch to the package of services which is the subject of special

pricing for competitors’ customers. In offering a combined plan to both CAS customers and

11

DBS customers in the affected franchise areas of Parkersburg, Vienna and Wood County, under

a combined name, Charter, and subsequently Suddenlink, have not materially varied the previous

practice of offering substantially the same special pricing packages to CAS customers under one

name and DBS customers under another.

As noted above, in making the required analysis of undue discrimination it must

first be determined whether such rates are true promotional and introductory rates, which are

universally applied and limited in time, and, accordingly, would be excepted from the statutory

prohibition against unduly discriminatory rates and charges. The ALJ’s Recommended Decision

is correct in holding that Suddenlink’s special pricing plans in issue are not excepted promotional

and introductory rates because they are not universally applied, but, further clarification is

required as to the potential customers to whom such pricing must be offered to be considered

universally applied. In this instance, such plans must be offered not only to competitors’

customers, but to all noncustomers of Suddenlink, including those not receiving any

multichannel video service, and existing Suddenlink customers of other levels of service, who

are likewise potential customers of the service packages in issue. CAS also takes issue with

Charter’s/Suddenlink’s argument that such plans are universally applied because they are offered

in all franchise areas in which Suddenlink operates. Rather, the test of universal application

requires such pricing be offered to all potential customers in each franchise area in a

nondiscriminatory manner.

12

While not varying the ultimate decision that the plans in issue are not promotional

and introductory rates, CAS contends that the ALJ should have also found that the Suddenlink

packages in issue, being twelve (12) months in duration, were not sufficiently limited in time.

While not asserting that the examples it cites in its various filings of FCC and FTC regulations

and the cable television service ordinance of the District of Columbia constitute binding

authority, CAS asserts that they do provide guidance as to acceptable limits of the duration of

offers to be considered truly promotional and introductory in nature. Moreover, for this

Commission to adopt Charter’s/Suddenlink’s reasoning that a twelve (12) month period provides

a sufficient limitation because competing DBS providers pricing plans are of a similar duration,

amounts to a call for abrogation of this Commission’s statutory duty to prohibit unduly

discriminatory rates, allowing such time parameters to be determined by an unregulated industry,

the DBS industry. If the law is flawed in not prohibiting discrimination by DBS providers, the

approach to pursue is to seek legislation to prohibit the same, not pursue discriminatory pricing

in the providing of cable television services in the face of the statutory prohibition of such

discriminatory pricing in the providing of such services. In such vein, what if DBS providers

offered pricing plans that were two, three, or more years in duration?

In any event, since the Suddenlink plans in issue are not promotional and

introductory rates as defined in CAS v. PSC, there must be a showing by Charter/Suddenlink that

a rational basis exists for such rate discrimination to justiQ the charging of differing rates to

different categories of customers for the same packages of services, and CAS agrees with the

ALJ that no rational basis as required by the Supreme Court has been shown by

13

Charter/Suddenlink. The authority the Supreme Court cited in CAS v. PSC requires a showing of

differences in economic benefit to be derived by Suddenlink in serving the customers to whom it

offers the special pricing plans from those derived by Suddenlink in serving customers to whom

it does not offer such plans, whether it be differences in the cost of serving such categories,

technological differences, differences in value of such customers, etc. Such requirement is

consistent with rate and price discrimination jurisprudence, such as that cited in CAS v. PSC. In

this regard, CAS takes issue with Charter’s/Suddenlink’s position that the simple rationale of

seeking to obtain a competitors’ customers provides the rational basis the Court requires because,

as Charter/Suddenlink argues, the standard to be obtained is a minimum standard under the equal

protection analysis afforded to legislative and other government classifications involving

economic rights, Charter/Suddenlink is not entitled to the great deference given legislative and

government bodies in making classifications in equal protection cases involving economic rights,

such deference to legislative and government determination being the crux of such cases, the

Supreme Court’s admonition that the equal protection cases which ChartedSuddenlink seeks to

invoke, while instructive, are not determinative of the rational basis issue in this case, and

Charter’s/Suddenlink’s superficial justification belies the very essence of the Supreme Court’s

opinion in CAS v. PSC, since just such superficial rationale for different rates is what was

rejected by the Court in such case. Moreover, as hereinafter noted the Supreme Court’s decision

in CAS v. Charter supports CAS’ arguments on such issues.

Accordingly, CAS asserts that the ALJ’s Recommended Decision should be

confirmed and made the Order of this Commission, except that this Commission should further

14

clarify the potential customers to whom the special Suddenlink pricing at issue must be offered

in order to constitute universal application, consistent with CAS’ argument, and this Commission

should further rule that the twelve (12) month period employed by Suddenlink is not a sufficient

limitation in time to constitute the pricing plans at issue true promotional and introductory offers,

5 . While the case adjudicated in CAS v. Charter does not adjudicate the plans

in issue in the proceedings which have occurred before this Commission beginning in 2006, such

opinion is noteworthy and additional authority which supports many of CAS’ arguments herein

and refutes many of Charter’ s/Suddenlink’s arguments herein regarding the application of the

principles and directives of the Supreme Court articulated in CAS v. PSC to the plans which

remain the subject of this proceeding, e.g. the definition of the rational basis required to justify

charging different rates to different categories of subscribers being required to be based upon

justifiable differences in economic benefits derived from serving such categories, and the burden

of proving such justification being on those charging such different rates, i.e.

Charter/Suddenlink. Accordingly, CAS submits that in the interest of justice in reopening this

case the parties should be afforded the opportunity to address the impact of the Supreme Court’s

decision in CAS v. Charter, such as referenced above, on the principles of law and directives of

the Supreme Court articulated in CAS v. PSC and their application to the facts and issues

developed on the record herein beginning in 2006, as well as other developments in the law, if

any, since this matter was submitted for determination in 2008, to properly assist the

Commission in adjudicating such matters and in its administrative functions relative to the

State’s cable television industry and cable television consumers going forward. Also, in addition

15

to the determination of the issues remaining to be addressed by the Commission for the post

2002 plans through the hearing of August 30,2007, CAS further submits that the pricing plans of

Suddenlink in the franchise areas in which it and CAS continue to compete for the period from

August 30, 2007 to the present, should likewise be examined in further proceedings herein, in

similar fashion as this Commission previously ordered by its December 14, 2006 and June 1,

2007 Orders herein, since as Charter/Suddenlink has successfully and accurately asserted this

“case has significant importance to the cable television industry and cable television consumers

in the State,” and adjudication of all such matters will offer governance in such industry going

forward, as well as identifying and determining the controversies between the parties, and such

governance is appropriate to this administrative body.

WHEREFORE, CAS objects to the Order of this Commission entered October 9,

20 12, respectfully requests this Commission reconsider such Order and reopen proceedings

herein to address the issues set forth herein which remain to be addressed by the Commission,

Respectfully submitted this 18fh day of October 2012.

Robert W. Full (WV State Bar #4749) GOODWIN & GOODWIN, LLP Attorneys at Law T o m e Square, 201 Third Street Parkersburg, WV 26 10 1 (304) 485-2345 - Telephone (304) 485-3459 - Facsimile

16

Case No.:

Case Name:

VERIFICATION

State of West Virginia Public Service Commission

Charleston

0 1 -0646-CTV-C

COMMUNITY ANTENNA SERVICE, INC., a West Virginia corporation, 1525 Dupont Road Parkersburg, West Virginia 26 10 1 Complainant,

vs.

CHARTER COMMUNICATIONS, VI, LLC a limited liability company Defendant. 1735 East Seventh Street Parkersburg, West Virginia 26 10 1

STATE OF WEST VIRGINIA, COUNTY OF WOOD, TO-WIT:

Arthur R. Cooper, President of Community Antenna Service, Inc., a West Virginia

corporation, the Complainant herein, being first duly sworn, says that the facts and allegations

contained in the Objection, Petition For Reconsideration And Application For Reopening are true,

except so far as they are therein stated to be upon information, and that, so far as they are stated to

be on information, he believes them to be true.

Arthur R. Cooper

Taken, subscribed and sworn to before me this 1 gfh day of October 2012.

MY commission expires: /’ I - 9 5- A 018

8* YLh245t Notary Public

IN THE CIRCUIT COURT OF WOOD COUNTY, WEST VIRGINIA

CHARTER COMMUNICATIONS VI, LLC,

Plaintiff,

vs. Ill Civil Action No: 00-C-505

COMMUNITY ANTENNA SERVICE, INC., a corporation,

Defendant.

O R D E R

This matter came for hearing on the 22nd day of October, 2007, pursuant to

Plaintiff's Motion in Limine to Exclude Inadmissible Evidence, Plaintiffs Motion in

Limine to Exclude Prejudicial, Confusing and/or Misleading Evidence, Plaintiffs Motion

in Limine to Limit the Testimony and Report of Robert W. Astorg, Defendant's

Combined Motions in Limine and/or Motion for Partial Summary Judgment. The

Plaintiff, Charter Communications VI, LLC, appeared by counsel, Bryant J. Spann,

Robert G. Scott, Jr. (telephonically), and Zackary B. Mazey, and the Defendant,

Community Antenna Service, Inc., appeared by counsel, Robert W. Full.

Whereupon the Court acknowledged receipt of the Plaintiffs Motion in Limine to

Exclude Inadmissible Evidence, the Plaintiffs Motion in Limine to Exclude Prejudicial,

Confusing andor Misleading Evidence, the Plaintiffs Motion in Limine to Limit the

Testimony and Report of Robert W. Astorg, Defendant's Combined Response to Motions

in Limine, the Defendant's Combined Motions in Limine and/or Motion for Partial

Summary Judgment, the Plaintiffs Consolidated Opposition to Combine Motions in ENTERED

m- NQV 2 ' 1 2007

0.6. No.-

1

Limine and/or for Partial Summary Judgment, and all other accompanying documents.

Further, the Court has studied the above-mentioned documents, oral arguments o f

counsel, and applicable statutory and case law.

I. Plaintiffs Motion In Limine to Exclude Inadmissible Evidence

CAS Work Orders

The Court is of the opinion that Rules 802, 803, and 805 of the West Virginia

Rules of Evidence govern the issue of the admissibility of the CAS work orders. Rule

802 states, “Hearsay is not admissible except as provided by these rules.” W. Va. R.

Evid. 802. Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” W. Va. R. Evid. 801(c).

Here, the Court would find that the CAS Work Orders are hearsay because the

Defendant at trial would offer them to prove the truth of the matter asserted, specifically,

the reason(s) that a specific customer left CAS and subscribed with Charter.

In order to be admissible, the CAS Work Orders would need to fall under one of

the exceptions to the hearsay rule provided by the Rules of Evidence. The Defendant

propounds the so-called “business records exception” provided by Rule 803(6), which

states:

Records of regularly conducted activity. - A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this

I

I

paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

W. Va. R. Evid. 803(6). Further, the Supreme Court of Appeals has established three

ways in which the knowledge requirement of the Rule can be established:

(1) that the preparer of the record had knowledge of the matters reported; or (2) that the information reported was transmitted by a person with knowledge, who was acting in the course of a regularly conducted activity; or (3) that it was a regular practice of the activity to rely upon communications from persons with knowledge.

Syl. Pt. 8, Lacy v. CSX Tramp. Inc., 205 W.Va. 630 (1999).

Here, the CAS Work Orders were prepared by customer service representatives

(“CSRs”) who received information from customers who either called or visited the

company in person. The CSRs entered the information into a notes section provided on a

computer form. The CSRs were not instructed in any particular or uniform manner to

record any specific information, but anything they thought was of note in their contact

with the customer. It is likely that the Work Orders themselves were prepared in the

regular course of the business activity; however, it does not appear that the information

provided in the notes sections of the Work Orders was conducted in any uniform or

regular way, and, therefore, not entered in the regular course of the business activity. The

CSRs did not exactly record everything that the customers told them and in some

instances added notes that indicated their own beliefs and assumptions about what the

customers had told them. In some cases, the notes sections were left blank with no

annotations at all.

As far as whether the preparers of the Work Orders, the CSRs, had knowledge of

the information they provided in the notes section of the Work Orders, the Court believes

that none of the three ways provided by Lacy are met. First, it is clear that the CSRs did

not know themselves the reasons that the customers were canceling their service with

CAS. In fact, the CSRs were relying on the statements of the customers in order to input

information into the notes section. Second, the information was not provided by a person

with knowledge who was acting in the course of a regularly conduct activity because the

customers who were providing the information were not a part of the company creating

the Work Orders and could not have been conducting a regular activity. Third, while it

may have been the practice of the activity to rely, at least to some extent, on the

information provided by a person with knowledge, it appears from CAS’ own admission

that it did not always rely upon the statements that were made by the customers.

Additionally, the Court is troubled by the apparent untrustworthiness and

unreliability of the CAS Work Orders. As has been indicated by the parties, CAS did

not, in many instances, take the statements made by its customers as true. At times, CAS

completely disregarded the statements made by the customers. As the Supreme Court of

Appeals has stated, “[Tlhe key to admissibility is the regularity and trustworthiness of the

business recordkeeping and entries , , , .” Hill v. Joseph T, Ryersoyl & Son, Inc., 165

W.Va. 22 (1980). The Court finds that the Plaintiff has demonstrated that the Work

Orders contain inaccuracies and indications of untrustworthiness.

Further, the Court finds that the CAS Work Orders do not satisfy the “bminess

records exception” to the hearsay rule as the Work Orders, specifically the information

provided in the notes sections thereof, were not created in the course of a regularly

conducted business activity and the knowledge requirement is not met. Further, there

appears to be substantial issues of trustworthiness and reliability with regard to the Work

Orders.

n

The Defendant also propounds the hearsay exception provided by Rule 803(3),

which states:

Then existing mental, emotional, or physical condition. - A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

W. Va. R. Evid. 803(3). The Rule allows for a hearsay exception for statements of the

declarant’s then existing state of mind, emotion, sensation, or physical condition but does

not allow the admissibility of statements of memory or belief to prove the fact

remembered or believed.

Here, the statements made by the customers providing the reasons for why they

ended their service with CAS are essentially statements dealing with past facts. The

customers had previously decided to cancel their service with CAS and were not

contacting CAS first and then deciding to cancel their service, This is particularly

important with regard to whether a customer told CAS a specific reason for canceling

their service, such as obtaining a specific deal or offer from Charter. It appears that a

customer would have previously received the offer and then decided to take it, thereafter,

the customer would have contacted CAS to cancel its service. Finally, the Rule does not

allow the admissibility of the statement if it is being offered to prove the fact remembered

or believed, which is the apparent purpose of CAS offering the statements, to prove the

specific reasons that the customers were leaving CAS service.

As far as this Motion seeks to exclude the CAS Work Orders, it is GRANTED.

CAS Spreadsheets

As the Court has found above that the CAS Work Orders are inadmissible as

hearsay, so too does the Court find that the CAS Spreadsheet are inadmissible as multiple

hearsay as provided by Rules 802 and 805 of the West Virginia Rules of Evidence.

Further, the Court would find that the Spreadsheets are not admissible under Rule 1006

of the West Virginia Rules of Evidence regarding Summaries. The Court remains

troubled with the apparent untrustworthiness and unreliability of the Spreadsheets as

CAS has admittedly included customers as switching to Charter cable service for the

alleged pricing practices even when the customers expressly indicated otherwise.

Additionally, the summaries themselves are not admissible under the “business records”

exception to the hearsay rule because they were admittedly prepared in preparation of

trial.

The Motion seeking to exclude the CAS Spreadsheets, it is GRANTED.

Decision of the West Virginia Supreme Court of Appeals in CAS v. PSC

The Court would refer to Section IV. f. of this Order dealing with the Supreme

Court of Appeals decision in CAS v. PSC. The Court would find that the CAS v. PSC

opinion is not admissible in and of itself at trial and should not be provided for the jury.

As the parties have indicated, it is within the province of the Court to determine the law

and instruct the jury. In this regard, the Court will consider the CAS v. PSC opinion in its

determination of the law.

As far as this Motion seeks to exclude the Decision of the West Virginia Supreme

Court of Appeals in CAS v. PSC from being presented as evidence, it is GRANTED,

Post-2002 Pricing

The Court is of the opinion that Rules 401,402, and 403 of the West Virginia

Rules of Evidence govern the issue of the admissibility of any Charter post-2002 pricing

plans. Rule 401 states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

W. Va. R. Evid. 401. Rule 402 states:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of Appeals. Evidence which is not relevant is not admissible.


Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confision of

- the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

W. Va. R. Evid. 403.

Here, the main issue with regard to the post-2002 pricing plans of Charter is

whether evidence of those plans has “any tendency to make the existence” of pre-2003

plans “more probable or less probable.” It appears from the record in this case that the

Defendant, CAS, has not included in its Counterclaims issues relating to the post-2002

pricing plans. In fact, Charter utilized these plans only after 2002 and some time after the

Counterclaims were filed in this case. The post-2002 pricing plans do not tend to prove

anything about the pre-2003 pricing plans as they are separate from each other. In fact,

the PSC is reviewing these post-2002 pricing plans separately from the pre-2003 plans

that it had previously reviewed.

7

Further, assuming that the post-2002 pricing plans were relevant to the issues

presented by the Counterclaims, the Court believes that any probative value that could be

offered by the evidence is substantially outweighed by the danger of unfair prejudice,

confusion ofthe issues, or misleading the jury because the jury will already be dealing

with a complex set of facts and circumstances presented by the pre-2003 pricing plans

alone. Evidence of the post-2002 pricing plans may be unfairly prejudicial to Charter

because the jury may tend to confuse the evidence concerning those plans with the

evidence concerning the pre-2003 pricing plans when deciding the issues, as pled,

concerning the pre-2003 alone.

Therefore, the Court believes the evidence of the post-2002 pricing plans is not

relevant to the issues presented by this case and the Counterclaims of CAS and, therefore,

would find that it is inadmissible under Rule 402 of the West Virginia Rules of Evidence,

Also, any probative value of the evidence is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.

As far as this Motion seeks to exclude evidence of the post-2002 pricing plans of

Charter, it is GRANTED.

Therefore, the Plaintiff's Motion in Limine to Exclude Inadmissible Evidence is

GRANTED.

11. Plaintiff's Motion In Limine to Exclude Preiudicial, Confusing and/or Misleading Evidence

Revised Summary of Economic Damages of Dr. Rizziito

The Court is of the opinion that Rules 702 and 703 of the West Virginia Rules of

Evidence govern the issue of whether the testimony and report of Defense Expert Dr.

Ronald Rizzuto should be limited or excluded. Rule 702 states:

n

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

W.Va. R. Evid. 702. Rule 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.


Here, Dr. Rizzuto relied upon at least 970 of Charter’s own work orders

indicating the sale of CAS buy-back plans among many other sources for preparing his

report. The main contention in the motion made by Charter appears to deal with some

possible difficulties that the expert may have had in calculating alleged damages to CAS

withregard to the post-2002 pricing plans. However, as stated and found above,

evidence of the post-2002 pricing plans are inadmissible. The Court would find that

Defense Expert Dr. Ronald Rizzuto is a qualified expert in the relevant field as indicated

by his experience and qualifications as a professor of finance at the Daniels College of

Business at the University of Denver. Dr. Rizzuto’s testimony will aid the trier of fact in

making its determination with regard to the possible amount of damages allegedly

sustained by CAS. Further, Dr. Rizzuto is permitted to testify at trial with regard to the

damages calculations that he has made based upon the information that he used in doing

so, as it appears these are facts and data that would be properly used by experts in

calculating such damages. The Court would refer again to its prior finding that evidence

of the post-2002 pricing plans is inadmissible. The Court is guided by the opinion in

Gentry v. Mangum, 195 W. Va. 5 12 (1995), which provides, in part: “’Conventional

devices,’ like vigorous cross-examination, careful instructions on the burden of proof,

and rebuttal evidence, may be more appropriate instead of the ‘wholesale exclusion’ of

expert testimony under Rule 702.”

The Motion to exclude from evidence the report and testimony of Dr. Ronald

Rizzuto is DENIED.

Email of Patrick Barclay

The Court is of the opinion that Rule 403 of the West Virginia Rules of Evidence

governs the issue of whether the Email of Patrick Barclay is admissible. Rule 402 states:


W. Va. -. R. Evid. 402.

Here, at issue is a one-line ernail of Patrick Barclay (then General Manager of

Charter’s Parkersburg area systems) to Nildti Parks (then Charter’s Door-to-Door Sales

Manager for Parkersburg), Stanley Howell (then Charter’s Director of Marketing for the

Mid-Atlantic Region), and Kenny Phillips (then Charter’s Marketing Manager for the

Mid-Atlantic Region), with a copy to Lisa McNeil (then Charter’s Billing Coordinator).

The email was part of an exchange concerning computer billing codes for offers to

Charter customers who were former CAS subscribers. The email’s sole sentence stated:

“Wasn’t our offer to them to be $29,65 ad infinitum, or at least until we crush him?” It

would appear that the email is relevant to the current case in that it tends to prove the

existence of at least some type of competitive pricing plans being offered by Charter. It

is an central issue in this case whether or not Charter engaged in rate discrimination. The

. n

email indicates at least, in part, a determination to use pricing to drive out the

competition. Additionally, it is not for the Court to decide how to present and explain

evidence to the jury. As the Court believes that the Email of Patrick Barclay bears

directly on the issues in this case, the Court finds that it is relevant evidence that is

admissible at trial.

The Motion to exclude from evidence the Email of Patrick Barclay is DENIED.

The Court would therefore DENY the Plaintiffs Motion in Limine to Exclude

Prejudicial, Confiising and/or Misleading Evidence, as provided above.

111. Plaintiff’s Motion In Limine to Limit the Testimony and ReDort of Robert W. Astorg

With regard to the Plaintiffs Motion on the Testimony and Report of Robert W.

Astorg, the Court will not consider it further as it appears that the parties have an

agreement with regard to Mr. Astorg’s expert status and the evidence he will provide. It

appears to the Court that this agreement does not provide for the testimony of Mr.

Astorg’s opinions with regard to (1) matters of business or legal ethics, (2) causation of

damages, or (3) the value of cable customers.

IV. Defendant’s Combined Motions in Limine and/or Motion for Partial Summary Judement

a. Charter Exhibits Numbers 2, 10, 11, 12, 13, 14, 94, 95, 96, and 103


Evidence govern the issue of whether Charter Exhibits 2, 10, 94, 95 and 103 are

admissible. Rule 401 states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

1 1

w. Va. R. Evid. 401. Rule 402 states:


w. Va. R. Evid. 402.

Here, Charter Exhibits 2, 10, 94, 95, and 103 relate to issues that are no longer a

Part of this case and were previously abandoned, As such, the Court finds that those

exhibits are no longer relevant to the case and are inadmissible. The Court would note

that with regard to Charter Exhibit 10, the parties can easily stipulate to the date in which

the parties began competing and need not introduce the franchising agreement.

With regard to Charter Exhibits 11, 12, 13, 14 and 96, the Court finds that those

exhibits are relevant and, therefore, admissible insofar as they are used for the sole

Purpose of proving the competition defense to the tortious interference claim that Charter

may invoke as part of its defense.

Therefore, the Defendat’s Motion with regard to Charter Exhibits 2, 10, 11 , 12,

14, 94,95, 96, and 103 is GRANTED, in part, and DENIED, in part, as provided

38, 39, 40, and Those Portions of Charter Exhibits 35 scriber Counts in Preston and Jnckson Counties, West

Virgin in

urt is of the opinion that Rules 401 and 402 of the West Virginia Rules of

m the issue ofwhether Charter Exhibits 32,33, 35, 36, 37, 38, 39, and 40

idence” means evidence having any tendency to make the any fact that is of consequence to the determination of the

13

action more probable or less probable than it would be without the evidence.




Here, the above-listed Charter exhibits all deal with CAS subscribers in Preston

and Jackson Counties, West Virginia. This case deals with the service plans in the City

of Parkersburg and portions of Wood County, West Virginia. As such, evidence relating

to CAS’S operations in Preston and Jackson Counties is not relevant to the issues to be

presented in this case. Any evidence concerning the other areas does not provide

evidence as to the subscribers in the urban area at issue in this case. If the evidence could

provide other reasons, i.e. other than Charter’s pricing plans, for why customers left CAS,

these reasons are likely far remote from the reasons associated with customers in

Parkersburg and Wood County. Even if there is some possible probative value to the

evidence relating to Preston and Jackson Counties, the Court believes that it is

substantially outweighed by the danger of unfair prejudice to CAS.

Therefore, the Court would find that Charter Exhibits 32, 33, 35, 36,37, 38, 39,

and 40 are not relevant and are inadmissible. Further, any probative value of the

evidence is substantially outweighed by the danger of unfair prejudice.

The Defendant’s Motion with regard to Charter Exhibits 32, 33, 35,36, 37,38,

39, and 40 is GRANTED.

c. Charter Exhibits 4, 5, and 6

The Court is of the opinion that the motion to exclude Charter Exhibits 4,5, and 6

has been withdrawn by CAS and therefore will require no further consideration by the

court.

d. Charter Exhibit 7

The Court is of the opinion that there is not reason to further consider the motion

to exclude Charter Exhibit 7 because the parties have an agreement on the admissibility

of the exhibit. If the parties desire further resolution of this issue it should be brought to

the attention of the Court for ruling.

e. Evidence of CAS’S Business Value and Financial Performance


Evidence govern the issue of whether evidence of CAS’s Business Value and Financial

Performance are admissible. (Rules 401 and 402 cited above).

Here, evidence that CAS performed better or worse, or its value has increased or

decreased, during the time it has been competing against Charter is relevant to the issue

of whether Charter’s pricing practices are the proximate cause of CAS’s damages. It

appears that Charter should be provided the opportunity to present evidence of CAS’s

performance during these times because it tends to show what reason or reasons

customers of CAS left or returned to service with the company.

Therefore, the Court would find that the evidence of CAS’s Business Value and

Financial Performance are relevant in this case and are admissible.

The Defendant’s Motion with regard to Evidence of CAS’s Business Value and

Financial Performance is DENIED.

J Collateral Estoppel or Partial Summary Judgment

First, the Court would refer to its Order of November 15,2007 denying

Plaintiffs, Charter’s, Motion for Summary Judgment. The Court found that there is a

private cause of action under West Virginia law with regard to the rate discrimination

claim of Count I11 of the Counterclaim and the tortious interference claim of Count IV of

the Counterclaim.

Second, the Court is of the opinion that Syl. Pt. 1 of State v. Miller, 194 W.Va. 3

(1 995) governs the issue of collateral estoppel in this case.

Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against who the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

Id. The Supreme Court of Appeals further held:

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise, the prior decision must be rendered pursuant to the agency’s adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court. In addition, the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel.

Syl. Pt. 4, Id.

Here, the Court cannot find that element (2) of the above test is satisfied by the

ruling in the Supreme Court of Appeals case CAS v. PSC nor in the PSC’s ruling on

remand. The Supreme Court indicated in its ruling that the pricing practices of Charter

were “simply rate discrimination,” but in the next sentence the Court iridicated that the

pricing practices could be lawful if the PSC could find a “rational basis” for the pricing

differences between customers. The Supreme Court did not find that Charter’s pricing

plans were unlawful rate discrimination and it did not reach a final adjudication that

Charter’s activities were illegal. The Supreme Court remanded the case to the PSC to

make a determination on the “rational basis” question. The PSC never made a final

adjudication on this question because it found that the question was moot as Charter had

discontinued its pricing practices by the time the case was remanded to the PSC. The

Court believes that, in this case, the question of whether Charter’s pricing plans were

unlawful rate discrimination is a question for the jury.

Therefore, the Court would find that there was never a final adjudication on the

merits in the previous cases and Charter is not collaterally estopped from asserting that its

activities did not violate West Virginia law.

The Defendant’s Motion with regard to Collateral Estoppel and/or Partial

Summary Judgment is DENIED.

Accordingly, the Court ORDERS:

1. Plaintiffs Motion in Limine to Exclude Inadmissible Evidence is GRANTED;

2. Plaintiffs Motion in Limine to Exclude Prejudicial, Confusing and/or Misleading Evidence DENIED;

3, Plaintiffs Motion in Limine to’Limit the Testimony and Report of Robert W. Astorg is NOT DECIDED;

4. Defendant’s Combined Motions in Limine and/or Motion for Partial Summary Judgment :

a. Charter Exhibits 2, 10, 11, 12, 13, 14, 94, 95, 96, and 103 is GRANTED, in part, and DENIED, in part, as provided above;

b. Charter Exhibits 32, 33, 35,36, 37, 38, 39, and 40 is GRANTED;

c. Charter Exhibits 4, 5 , and 6, motion has been WITHDRAWN;

d.

e.

f.

Charter Exhibit 7 is NOT DECIDED;

Evidence of CAS’S Business Value and Financial Performance is DENIED; and

Collateral Estoppel and/or Partial Summary Judgment is DENIED; and

. . 5 . is dire cred to deliver a copy to the parties or iherr-- ---mJriL

ENTER this 21 ‘k day of Nwember, 2007:

17

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

CASE NO. : 0 1 -0646-CTV-C

COMMUNITY ANTENNA SERVICE, INC., a West Virginia corporation 1525 Dupont Road Parkersburg, West Virginia 26 10 1 , Complainant,

vs.

CHARTER COMMUNICATIONS, VI, LLC 1735 East Seventh Street Parkersburg, West Virginia 26 101 , Defendant.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the ltith day of October 2012 he served

the Objection, Petition For Reconsideration And Application For Reopening of Community

Antenna Service, Inc., upon the following named parties, by depositing true copies thereof in the

United States mail, first class postage prepaid, and email transmission, addressed as follows:

H. Wyatt Hanna, 111, Esquire Attorney at Law P. 0. Box 8070 South Charleston, WV 25303 hwyatthannaiii@,wvdsl.net Counsel for the Defendant

Robert G. Scott, Jr., Esquire Davis Wright Tremaine LLP Attorneys at Law 191 9 Pennsylvania Avenue, N. W., Suite 800 Washington, D.C. 20006-3485 [email protected] Counsel for the Defendant

mailto:hwyatthannaiii@,wvdsl.net

mailto:[email protected]

Lisa L. Wansley, Esquire Public Service Commission 201 Brooks Street Charleston, WV 25302 LWansley @,mestate .wv.us Staff Counsel for Public Service Commission of West Virginia

Robert W. Full (WV State Bar #4749) GOODWIN & GOODWIN, LLP Attorneys at Law T o m e Square, 201 Third Street Parkersburg, WV 26 101 (304) 485-2345 - Telephone (304) 485-3459 - Facsimile

2

Documents

Goodwin LLP Towne Square, 201 Third Street T