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Click here for the full text of this decision FACTS:Appellant Damon Darby filed for Chapter 13 bankruptcy on July 30, 2004. Soon after receiving notice of the filing, Time Warner terminated Darby’s cable service. Darby offered Time Warner a deposit to reinstate his cable service. Time Warner refused to reinstate his service and Darby filed a motion with the bankruptcy court to compel Time Warner to reinstate his service upon the offering of adequate assurances of future payment as required by 11 U.S.C. �366. Time Warner argued that it was not a utility within the meaning of �366 and therefore it did not have to reinstate Darby’s cable service even if he offered adequate assurances. The bankruptcy court ordered that Time Warner reinstate the service upon the grant of a $250 super-priority claim to Time Warner should Darby default on his future payments. Time Warner complied with the bankruptcy court’s order and reinstated Darby’s cable service. Time Warner then filed an emergency motion to reconsider the order. At the hearing on this motion, Darby testified that cable service was not a necessity despite its convenience. He also presented evidence that his costs would increase to $250 if he sought satellite services. The bankruptcy court reconsidered its prior order and ruled that Time Warner was not a utility and did not have to reinstate Darby’s service. The district court agreed. Darby filed this timely appeal. Time Warner voluntarily continued to provide Darby service pending the outcome of this appeal. HOLDING:Affirmed. The court held that Time Warner was not a utility as contemplated by � 366. Section 366, the court explained, gives debtors protection from a cut-off of service by a utility because of the filing of a bankruptcy case. Section 366, the court stated, is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility. The court then examined whether Time Warner stood in a special position with respect to Darby such that it is a utility within the meaning of the statute. The legislative history, the court stated, shows that a strong justification, such as the need for continued access to essential services, underlies �366. The services mentioned in the legislative history are those considered necessary to meet minimum standards of living. The necessity of a service is what creates a special relationship between a debtor and a utility, the court held in finding that cable service was not such a necessity. Therefore, the court held that �366 did not encompass cable service and Time Warner was not required to reinstate Darby’s service despite his offer of adequate assurances of future payment. The court expressed no opinion on the effect of �366 on telephone service that is bundled with cable service. OPINION:Stewart, J.; Jones, C.J., and Smith and Stewart, J.J.

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