The opinion of the court was delivered by: ALTIMARI
By notice of motion dated November 3, 1983, and by agreement of the parties finally submitted for decision on January 10, 1984, plaintiffs move "for an order pursuant to FRCP 12(c) dismissing the defenses" that:
(1) Section 605 of the Communications Act of 1934, 47 U.S.C. § 605, "bars the maintenance of this action;"
(2) Cablevision's alleged tying arrangement "was justified;"
(3) Plaintiffs "may not maintain this action based on the doctrine of unclean hands;" and
(4) "[T]his action may not be maintained as it infringes upon certain defendants copyrights. . . ." (see Pl. Notice of Motion dated November 3, 1983).
In addition, plaintiffs move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Cablevision's counterclaim under 47 U.S.C. Section 605, on the ground that it fails to state a cause of action. (Id.)
The facts were fully set forth in our recent decision wherein we granted defendants' motion for summary judgment dismissing plaintiffs' fourth cause of action, Ciminelli v. Cablevision, F. Supp. (E.D.N.Y. 1984), familiarity with which is assumed.
Plaintiffs move to dismiss defendants' "affirmative defense" under Section 605 of the Communications Act of 1934, 47 U.S.C. § 605, see Plaintiffs' Memorandum in Support of the Motion to Dismiss Various Defenses of the Cable Companies at 3, hereinafter "Pl. Memo. to Dismiss," and Cablevision's counterclaim under the same section. (See, Pl. Notice of Motion; Pl. Memo to Dismiss at 14.) Though not clearly stated, it would appear that plaintiffs also seek to dismiss the Section 605 counterclaims of several other defendants.
We begin by noting that the defendants who raise Section 605 in their answer, interpose it as a counterclaim and not as a defense. Thus, to the extent plaintiffs struggle with the question of whether Section 605 can serve as a defense to an alleged antitrust cause of action, they wrestle with the wrong question. The issue is whether defendants' counterclaim under 47 U.S.C. Section 605 states a cause of action upon which relief can be granted. See 5. Wright & Miller, Federal Practice and Procedure, § 1356, at 590 (1969) ("The [Rule 12(b)(6)] motion is available to test a claim for relief ...