        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                            AT KNOXVILLE
                                                              FILED
             _______________________________________________________
                                                           December 11, 1997
                                    )
ROBIN MEDIA GROUP, INC.,            )     Sevier County Chancery Court
                                                           Cecil Crowson, Jr.
A Tennessee Corporation d/b/a East  )     No. 95-9-312     Appellate C ourt Clerk
Tennessee Cablevision,              )
                                    )
   Plaintiff/Appellant.             )
                                    )
VS.                                 )     C.A. No. 03A01-9704-CH-00146
                                    )
KENNETH M. SEATON,                  )
EAST COAST CABLEVISION, and         )
THE CITY OF PIGEON FORGE,           )
TENNESSEE,                          )
                                    )
   Defendants/Appellees.            )
                                    )
______________________________________________________________________________

From the Chancery Court of Sevier County at Sevierville.
Honorable Chester S. Rainwater, Jr., Chancellor



Hugh B. Bright, Jr.,
Norman G. Templeton,
WOOLF, McCLANE, BRIGHT, ALLEN & CARPENTER, Knoxville, Tennessee
Attorney for Plaintiff/Appellant.


C. Dan Scott,
Katherine M. Hamilton,
SCOTT & ASSOCIATES, Sevierville, Tennessee
Attorney for Defendant/Appellee Kenneth M. Seaton.

Douglas S. Yates, BRABSON, YATES & HAMILTON, Sevierville, Tennessee
Attorney for Defendant/Appellee East Coast Cablevision.

Norma McGee Ogle, OGLE, WYNN & RADER, Sevierville, Tennessee
Attorney for Defendant/Appellee City of Pigeon Forge, Tennessee.


OPINION FILED:

AFFIRMED IN PART, REVERSED IN PART AND REMANDED


                                           FARMER, J.

HIGHERS, J.: (Concurs)
WILLIAMS, Sr. J.: (Concurs)
                  Plaintiff Robin Media Group, Inc., appeals the trial court’s judgment dismissing its

claims for declaratory and injunctive relief against Defendants/Appellees Kenneth M. Seaton, East

Coast Television, and the City of Pigeon Forge. We affirm in part and reverse in part the trial court’s

judgment based, inter alia, on East Coast’s concession that Robin Media had standing to maintain

this action.



                                  I. Factual and Procedural History



                  Robin Media has a non-exclusive franchise to construct, operate, and maintain a cable

television system within the City of Pigeon Forge. Seaton also has a non-exclusive franchise to

construct, operate, and maintain a cable television system in Pigeon Forge; however, Seaton’s

franchise authorizes him to provide cable television services only to those properties in which Seaton

owns more than a fifty-one percent (51%) interest. Both franchises were granted by the City of

Pigeon Forge.1



                  After obtaining his franchise, Seaton contracted with East Coast to construct, operate,

and maintain a cable television system which would provide services to nine or ten hotels owned by

Seaton in Pigeon Forge. Under this arrangement, Seaton paid an annual programming fee to East

Coast. When East Coast built the cable system, it installed connection taps in front of every hotel

in Pigeon Forge, not just Seaton’s hotels. East Coast also ran drop lines to many non-Seaton hotels.

Randy Coley, the owner of East Coast, explained that he installed the additional taps and drop lines

for “future use” because he was hopeful that Seaton’s franchise would be expanded at some future

date. In that event, it would be a very simple matter for East Coast to expand the services being

provided by merely activating the tap at each hotel.



                  In May 1993, Earlene M. Teaster, the City’s manager, learned that East Coast was

offering cable television services to non-Seaton hotels in Pigeon Forge. Teaster called Randy Coley

of East Coast and asked him to cease using Seaton’s franchise to provide cable television services

to non-Seaton customers. According to Teaster, Coley informed her that he believed East Coast had



        1
            See T.C.A. § 7-59-102 (1992).
the right to provide cable television services to non-Seaton hotels under Seaton’s franchise. A few

days after this conversation, Seaton called Teaster and informed her that he also had asked Coley to

cease providing services to non-Seaton properties.



                In May 1994, representatives of Robin Media complained to Teaster that East Coast

was providing cable television services to at least six non-Seaton hotels in Pigeon Forge, and they

asked Teaster to investigate the matter. In response to Robin Media’s request, Teaster wrote a letter

to Coley again asking him to cease providing cable television services to non-Seaton hotels. Coley

did not response to Teaster’s letter.



                In October 1994, Melvin L. Hill, an employee of the City’s Building and Planning

Department, met with Seaton. During this meeting, Seaton indicated that he was not aware that East

Coast had run drop lines into non-Seaton hotels. Seaton called Randy Coley from Hill’s office and

instructed Coley to disconnect any non-Seaton properties from the cable television system. Coley

agreed to disconnect the non-Seaton hotels from the system. Shortly after the meeting in Hill’s

office, Seaton wrote a letter to City Manager Teaster inquiring about expanding his franchise.



                East Coast did not discontinue providing cable television services to the non-Seaton

hotels until August 1995. The following month, Robin Media filed this lawsuit against Seaton, East

Coast, and the City, seeking declaratory and injunctive relief and damages. Prior to trial, Robin

Media’s damages claims were dismissed. Accordingly, the only issues to be adjudicated at trial

involved Robin Media’s claims for declaratory and injunctive relief.2



                At trial, it was undisputed that East Coast entered into contracts with various non-

Seaton hotels which purported to provide the hotels with cable television services. East Coast took

the position, however, that its provision of services neither required a cable franchise nor violated

Seaton’s existing cable franchise. East Coast’s owner, Randy Coley, testified that the programming



       2
         The trial court’s pre-trial order indicated that the City filed a cross-claim for injunctive
relief against East Coast and that this claim was bifurcated. See T.R.C.P. 21 (providing that
“[a]ny claim against a party may be severed and proceeded with separately”); T.R.C.P. 42.02
(providing that, in nonjury trials, the trial court may “order a separate trial of any one or more
claims, cross-claims, counterclaims, or third-party claims, or issues”).
services provided to the non-Seaton hotels were not transmitted by way of the cable television

system but, rather, were transmitted by an infrared laser system that Coley had installed in addition

to the cable system. Coley acknowledged that, in constructing the cable system, he installed taps in

front of every hotel in Pigeon Forge and ran drop lines to a majority of the hotels. Coley insisted,

however, that these taps and drop lines were never activated. According to Coley, East Coast

installed a terminator at each tap to terminate its cable signal. Coley denied telling City Manager

Teaster that he believed East Coast had the right to provide cable television services to non-Seaton

hotels under Seaton’s franchise.



               Coley’s testimony was contradicted by two Robin Media employees, one of whom

testified that, when he reconnected the Robin Media cable system to the non-Seaton hotels in August

1995, he measured a signal being transmitted on the Seaton system at each tap or drop line. During

this process, the employee did not observe any terminators on the Seaton system. The other

employee testified that, when Robin Media employees disconnected the drop lines from the taps on

the Seaton system, the motel television screens “went blank.” When they reconnected the drop lines

to Robin Media’s cable system, the television pictures returned.



               At the conclusion of Robin Media’s presentation of proof, the trial court dismissed

Robin Media’s claims against Kenneth Seaton based on the court’s finding that Robin Media failed

to carry its burden of proving that Seaton authorized, directed, participated in, or had direct

knowledge of East Coast’s alleged violations of Seaton’s franchise. The trial court further found

that, when the violations were called to Seaton’s attention, Seaton immediately instructed East Coast

to cease and desist any such violations.



               At the trial’s conclusion, the trial court also entered an order dismissing Robin

Media’s claims against East Coast and the City. In support of its dismissal, the trial court ruled that,

because Robin Media’s cable franchise was non-exclusive, Robin Media lacked standing to maintain

this action against East Coast and the City. In support of its dismissal as to the City, the trial court

additionally ruled that there was “no allegation here for the Court to find that the City of Pigeon

Forge has done anything or failed to do anything that the Plaintiff has sought from them; and

therefore, there’s no justiciable issue for the Court to determine as against the City of Pigeon Forge.”
Finding no just reason for delay, the trial court directed the entry of a final judgment with respect to

Robin Media’s claims against the Defendants. See T.R.C.P. 54.02.



                On appeal, Robin Media contends that the trial court erred (1) in dismissing Robin

Media’s claims based on the court’s ruling that Robin Media lacked standing to bring this action,

and (2) in dismissing Robin Media’s claims against Seaton based on the court’s finding that Seaton

did not authorize, direct, or participate in any alleged violations of Seaton’s franchise.



                     II. Robin Media’s Claims Against East Coast Television



                On appeal, East Coast properly concedes that Robin Media had standing to bring this

action. Contrary to the trial court’s ruling, the non-exclusive nature of Robin Media’s cable

franchise did not preclude it from maintaining a suit for injunctive relief against Defendants who

allegedly were providing cable television services without the authority of a franchise. See

Tennessee Pub. Serv. Co. v. City of Knoxville, 91 S.W.2d 566, 568 (Tenn. 1936) (holding that

electric company with non-exclusive franchise was entitled to maintain suit for injunctive relief

against threatened or actual injury to property right through illegal competition); Memphis St. Ry.

Co. v. Rapid Transit Co., 179 S.W. 635, 638-39 (Tenn. 1915) (holding that jitney operator with non-

exclusive franchise had property right which entitled it to maintain suit to enjoin activities of other

businesses which were operating jitneys without authority of city franchise); see also Frost v.

Corporation Comm’n, 278 U.S. 515, 521 (1929) (holding that business with non-exclusive franchise

to operate cotton gin had standing to seek to enjoin activities of entity which operated gin without

obtaining franchise). Our conclusion that Robin Media had standing to bring this action compels

this court to reverse the trial court’s judgment in favor of East Coast and to remand for the trial court

to determine the central issues in this case, i.e. the legality of East Coast’s activities and the propriety

of Robin Media’s request for injunctive relief against East Coast.



                Although East Coast concedes that Robin Media had standing to bring this action,

East Coast contends that this court should decline to review Robin Media’s appeal on grounds of

mootness. Specifically, East Coast contends that this appeal is moot because, even if East Coast was

providing cable television services in violation of Seaton’s franchise or without the authority of a
franchise, East Coast voluntarily discontinued these activities in August 1995.



                The mere voluntary cessation of allegedly illegal conduct will not moot a controversy

such as to prevent courts from determining the legality of the practice. City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 (1982); United States v. Concentrated Phosphate Export Ass’n, 393

U.S. 199, 203 (1968); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953); Ragsdale v.

Turnock, 841 F.2d 1358, 1364 (7th Cir. 1988), appeal dismissed, 503 U.S. 916 (1992); Donovan v.

Cunningham, 716 F.2d 1455, 1461 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984). As the

United States Supreme Court has explained,



                       The test for mootness in cases such as this is a stringent one.
                Mere voluntary cessation of allegedly illegal conduct does not moot
                a case; if it did, the courts would be compelled to leave “[t]he
                defendant . . . free to return to his old ways.”



United States v. Concentrated Phosphate Export Ass’n, 393 U.S. at 203-04 (quoting United

States v. W.T. Grant Co., 345 U.S. at 632). In such cases, the defendant bears a “heavy burden” of

persuading the court that a controversy is moot by showing that “there is no reasonable expectation

that the putatively illegal conduct will be repeated, and [that] there are no remaining effects of the

alleged violation.” Ragsdale v. Turnock, 841 F.2d at 1365; see also Donovan v. Cunningham, 716

F.2d at 1461.



                Based on the record before us, we are not persuaded that East Coast has met the heavy

burden of demonstrating that the present controversy is moot. In any event, because the likelihood

of further violations by East Coast is inextricably linked to the issue of the propriety of granting

injunctive relief against East Coast, we conclude that these arguments are more appropriately

addressed to the trial court on remand. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. at

289 (indicating that abandonment of illegal activity “is an important factor bearing on the question

whether a court should exercise its power to enjoin the defendant from renewing the practice, but

that is a matter relating to the exercise rather than the existence of judicial power”); United States v.

Concentrated Phosphate Export Ass’n, 393 U.S. at 203-04 (holding that case was not moot but

noting that “it is still open to appellees to show, on remand, that the likelihood of further violations
is sufficiently remote to make injunctive relief unnecessary”); United States v. W.T. Grant Co., 345

U.S. at 633 (indicating that prerequisite for granting injunctive relief is determination “that there

exists some cognizable danger of recurrent violation, something more than the mere possibility”);

see also State ex rel. Baird v. Wilson County, 371 S.W.2d 434, 439 (Tenn. 1963) (indicating that

injunction will not be granted unless “injury is threatened or imminent and, in all probability, about

to be inflicted”).



       III. Robin Media’s Claims Against Kenneth Seaton and the City of Pigeon Forge



                As for Robin Media’s claims for injunctive relief against Seaton and the City, the trial

court made specific findings in support of its rulings that Robin Media was not entitled to injunctive

relief against either Seaton or the City. Inasmuch as this case was tried by the court below sitting

without a jury, we review the case de novo upon the record with a presumption of correctness of the

findings of fact by the trial court. Unless the evidence preponderates against these findings, we must

affirm, absent an error of law. Dailey v. Bateman, 937 S.W.2d 927, 930 (Tenn. App. 1996);

T.R.A.P. 13(d).



                Applying the foregoing standard, we conclude that the evidence does not

preponderate against the trial court’s finding that Robin Media failed to carry its burden of proving

that Seaton directed or participated in East Coast’s alleged violations of Seaton’s franchise. In order

to be entitled to injunctive relief against Seaton, Robin Media was required to prove that Seaton

participated in the challenged activities. Padgett v. Verner, 366 S.W.2d 545, 550-51 (Tenn. App.

1963). At trial, no evidence was introduced to show that Seaton directed or participated in East

Coast’s allegedly illegal activities of providing cable television services to non-Seaton hotels in

Pigeon Forge. Randy Coley of East Coast testified that Seaton did not ask him to provide cable

television services to the non-Seaton hotels and that Coley installed the additional taps and drop lines

on his own initiative. Randy Coley, or his representative, offered the cable services for sale and, on

behalf of East Coast, entered into contracts for such services with the various hotels. The evidence

showed that, when informed of East Coast’s possible franchise violations, Seaton instructed East

Coast to cease providing such services to non-Seaton hotels. The evidence also showed that Seaton

did not receive any profits or fees relative to East Coast’s provision of services to non-Seaton hotels.
                  Based on the foregoing evidence, we also conclude that the evidence supports the trial

court’s finding that Seaton did not authorize East Coast to engage in illegal activities. In this regard,

the burden of proving an agency relationship was on the party alleging its existence, Robin Media,

and the scope and extent of the authority of the alleged agent, East Coast, was a question to be

determined by the trial court from all of the facts and circumstances in evidence. Sloan v. Hall, 673

S.W.2d 548, 551 (Tenn. App. 1984). Under the circumstances of this case, we affirm the trial

court’s decision to deny Robin Media’s claim for injunctive relief against Seaton based on the

court’s finding that Seaton did not authorize East Coast to provide cable television services to non-

Seaton hotels. In affirming the trial court on this issue, we reject Robin Media’s argument that the

provisions of Seaton’s franchise and/or the federal Cable Communications Policy Act3 mandate the

conclusion that Seaton was vicariously responsible for Coley’s actions.



                  We likewise conclude that the preponderance of the evidence supports the trial court’s

decision to deny Robin Media’s claim for injunctive relief against the City of Pigeon Forge based

on the court’s finding that the City already had performed the acts sought by Robin Media. In

response to complaints by Robin Media and others, the City promptly instructed East Coast to cease

and desist offering cable television services to non-Seaton customers. Moreover, there was evidence

that the City was instrumental in convincing Randy Coley of East Coast to quit providing services

to the non-Seaton hotels. Coley testified that he made the decision to discontinue the services, in

part, because it “just wasn’t worth fighting the City.” Finally, we note that the City has filed a cross-

claim for injunctive relief against East Coast which has been severed from this proceeding.4 Under

these circumstances, we conclude that the trial court properly ruled that Robin Media was not

entitled to injunctive relief against the City.



                  Although we affirm the trial court’s rulings that Robin Media was not entitled to

injunctive relief against Kenneth Seaton or the City, we conclude that it was premature for the trial

court to dismiss these Defendants from the lawsuit. In the event that the trial court determines on



        3
            See 47 U.S.C.A. §§ 521--561 (West 1991 & Supp. 1997).
        4
            See supra note 2.
remand that some form of declaratory relief is appropriate, both Seaton and the City would be

necessary parties to such a proceeding. In seeking declaratory relief, Robin Media was required to

name as parties “all persons . . . who have or claim any interest which would be affected by the

declaration.” T.C.A. § 29-14-107(a) (1980). Thus, Robin Media properly named Seaton as a party

to this action because Seaton owns the cable franchise which was the subject of this lawsuit and

which would be affected by any declaratory judgment issued by the trial court. Robin Media also

properly named the City as a party to this action because the franchise at issue was granted by the

City and, by definition, the City has an interest which would be affected by a declaratory judgment.5

See, e.g., Harrill v. American Home Mortgage Co., 32 S.W.2d 1023 (Tenn. 1930) (holding that

trustee, who held title to property, and bank, which held notes under pledge to secure obligations of

mortgage company, were necessary parties to suit seeking declaration as to validity of mortgage

contracts); Baker v. Hancock County Election Comm’n, 1987 WL 7717, at *3 (Tenn. App. Mar. 12,

1987) (holding that, in action against county election commission in which determinative issue was

whether plaintiffs lived in Hancock County or Hawkins County, plaintiffs were required to join as

indispensable parties both counties).



                                          IV. Conclusion



               We affirm those portions of the trial court’s judgment denying Robin Media’s claims

for injunctive relief against Seaton and the City of Pigeon Forge; however, we reverse those portions

of the trial court’s judgment dismissing the Defendants from this proceeding and remand this cause

for the trial court to adjudicate (1) Robin Media’s claim for injunctive relief against East Coast and

(2) Robin Media’s claims for declaratory relief as to all three Defendants. Costs of this appeal are

taxed to East Coast, for which execution may issue if necessary.



                                                      ____________________________________


       5
          Alternatively, in seeking declaratory relief, Robin Media was required to name the City
as a party to this action if the proceeding involved the validity of a City ordinance or franchise.
See T.C.A. § 29-14-107(b) (1980). In this regard, Robin Media’s complaint did not challenge
the validity of the cable franchise under which East Coast and Seaton were providing cable
television services. Rather, Robin Media’s complaint alleged that, in providing such services,
East Coast and Seaton were exceeding the scope of Seaton’s franchise. We note, however, that
at trial Seaton raised an issue as to the validity of the cable franchise under which Robin Media
was operating.
                                 FARMER, J.



______________________________
HIGHERS, J. (Concurs)



______________________________
WILLIAMS, Sr. J. (Concurs)
