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Is Cable a Utility ?– The Lally Decision

The following item was posted in the November 24 NHBA e-Bulletin, and is followed by responses received to date.

The Bar News Editorial Board encourages Bar members to express their views on legal issues.

At a recent meeting, several members noted with interest the NH Supreme Court's recent decision in Lally v. Flieder that found that cable television service was a utility in context of a contested eviction.

The NH Supreme Court on October 30, 2009, ruled that the landlord was in violation of eviction law RSA 540-A3 for cutting off a tenant's cable television service.

The Court, in a unanimous decision in Lally v. Flieder said:

"The specified utlity services ...in RSA540-A:3 I, all pertain to the habitability of a dwelling or a person's well-being. Indeed, many people access essential telephone service, the Internet, news, information and entertainment by way of cable. Thus, the unlawful termination of a tenant's cable television service would be a means of accomplishing a self-help eviction -- the very evil the legislature mean to deter."

Bar Members’ Comments

Ignoring Irrelevancies, Landord Violated RSA 540-A
The Lally decision did not say that cable television is an “essential utility,” only that, like other utilities listed in RSA 540-A:3, I, it is related to the habitability of a dwelling and personal well-being. The decision stated that a landlord’s terminating cable service is prohibited by the statute, which is intended to prevent a landlord from taking self-help actions to drive out a tenant without following the legal procedures for such eviction.

Neither “regulated” nor “essential” is part of the list of examples of utilities that may not be terminated. The list includes elevator service and air conditioning, which are certainly not regulated utilities, and which most or many of us manage to live without. At any rate, cable television is subject to regulation by the FCC and local governments. Also, many more households in the US live without a telephone line (about 18 percent) than without TV (about 2 percent), and television service is certainly essential to distributing information in the event of natural disasters and other emergencies. Also irrelevant is who pays for the utility: the only question is who cut it off. If the landlord did it (or willfully caused the cable company to do it), it violates 540-A.

F. Barrett Faulkner
Keene
Missed Issue of Illegal Connection
It does not appear that the Court addressed the Landlord's allegation that the cable "utility" was via an illegal connection. An illegal connection is theft of the service/product. Who then is "the proper person to pull the plug", ei. stop the theft; the Landlord or the cable provider? What if the Landlord provides the cable connection to tenants who pay extra for it and this tenant didn't?
Mary E. Womboldt
Warren, NH
Cable is a Luxury
I think cable and all that stems from it are lux u ries, not necessities.
Vanessa Wilson

Utility vs. Regulated Utility
Within the context of the statute at issue in the cited case, which the Court parsed (RSA 540-A:3, I), yes, cable television service comes within the definition of the term "any utility" as used in the statute.  It is not, however, a "regulated utility" as the term is used in RSA 362:2, I.  Both litigants in the case were pro se and neither raised, so there was no analysis of, whether "utility" = "regulated utility."
Colin W. Robinson
Lyme, NH
The Decision is Consistent
The language of the statute speaks of "utility service... including but not limited to...." The decision recognizes the emergence of cable companies (since 1979 when the law was passed) as multi-function providers of services including classic utility services. The reality is that if a landlord yanks the cable, the tenant would feel as helpless and violated as if he were sitting in the dark.  I represent landlords almost exclusively, and from my perspective, the decision is entirely consistent with the line of decisions in this area. Thanks for the opportunity to comment.
Mark Tay
Exeter, NH
The Ruling, at a Second Glance...
We've come a long way, babies... When I was born in 1955, probably electricity was not a guaranteed utility for all tenants, and many of them probably arranged their own heat from coal stoves or woodstoves. So cable service as a necessity seems counter-intuitive at first.

BUT: if the landlord is providing it in the lease (in which case it is probably not a hardship expense to be providing it to a tenant that needs to be evicted), then the tenant may be using it for phone service, which can be a safety issue, and the Internet may be the only way to arrange important services & banking if the tenant works during business hours.
Judith N. Reardon
Chocorua, NH

What Behavior Does This Decision Encourage?
This is a moronic decision. By this standard of “well-being”, there is nothing that a freeloader can’t steal. I thought we had a problem with too much litigation clogging the courts. Well, congratulations, NH Supreme Court, you just buried the trial courts in needless expensive frivolity, not to mention increased cable bills for all honest people who pay their bills every month and who now must finance Judicial foreclosures to terminate cable service. I can hardly wait to see the gymnastics the court is going to go through to try to distinguish this decision when the first cable service thief makes an appeal where the cable company, rather than the landlord, exercises the self-help remedy of cable service termination. Ask yourself what kind of behavior does this decision encourage and discourage. When is the court going to start upholding the rights of the providers of these services rather than the thieves of these services?
Charles Cross
Greystone Equipment Finance Corporation

Distinguish Between ‘Essential’ and ‘Non-Essential’ Cable
Regarding the decision on the cable service, I do not think that cable service ought to be considered an essential utility for a rental unit unless the tenant accesses their only telephone line through cable and it’s documented that they have no other access in the unit, ie cell phone or Blackberry, etc.

This would enable them to call emergency services in the event of a health issue and could save a life. Otherwise cable should be considered non-essential and a landlord should not have to pay for it if he is not receiving proper and timely rent.
Elise B. Hoffman
Andover, Mass.


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