Morrison v. Viacom, Inc.

CHRISTOPHER MORRISON, et al., Plaintiffs and Appellants, v. VIACOM, INC., et al., Defendants and Respondents. No. A071263 (Marin County Super. Ct. No. 161687) California Court of Appeal First Appellate District Division Two Filed March 21, 1997 BY THE COURT:
        It is ordered that the opinion filed herein on February 27, 1997, be modified in the following particulars:
        1.        On page 6* the first full paragraph is deleted with the exception of footnote 4, which remains the same and will now appear at the end of the new language indicated below. The deleted text is replaced with the following language:

        "In its brief, respondent contends it was subject to "effective competition" "[f]rom September 22, 1990 (the starting date for the Complaint's allegations) through June 21, 1993 (when the Commission changed its effective competition regulations). . . ." We have not been directed to any factual evidence in the record to support this contention. But if it is correct, section 543(b)(7), the preemption provision relied on by both the trial court and respondent, could not have applied to respondent before June 21, 1993. In a petition for rehearing, however, respondent submits a new and different contention and asks us to rule as a matter of law that it was subject to effective competition (and hence not subject to rate regulation by anyone) only until the effective date of the 1992 Act, April 3, 1992. We decline the invitation to so rule for at least two reasons: (a) the statute seems to suggest that a Commission finding is determinative of whether a cable system is or is not subject to "effective competition" (see section 543 (a)(2)) and (b) bearing mind the procedural posture of this case, we think the issue of the effective date of rate regulation is one best left to the trial court for consideration in the course of future proceedings."

        2.        This modification does not effect a change in the judgment.
        The petition for rehearing is denied.


        * See Daily Journal D.A.R. of March 3, 1997, page 2165, column 1, paragraph 3, line 1.
        The full text of this case appears in 97 D.A.R. 2163, March 3, 1997.


98 Daily Appellate Report