(Complaint P 7.) Cablevision, a New York corporation, operates cable television systems in the United States and also owns substantial interests in cable television programming services such as, for example, Turner Broadcasting. (Complaint PP 12, 15.)
In 1985, when it first became operational, WLIG requested carriage on each of the nine cable systems -- including Cablevision -- then servicing Nassau and Suffolk Counties. (Complaint P 36.) At that time, and until July 1992 (when it provided only limited carriage), Cablevision refused to carry WLIG. (Complaint PP 39, 110.) Since 1986, Cablevision has acquired 7 of the 8 other cable systems in Nassau and Suffolk Counties. (Complaint P 1(b).) At the time of their acquisition, all seven cable systems carried WLIG. After acquisition by Cablevision, WLIG alleges that Cablevision either dropped WLIG from carriage or moved WLIG to a less favorable channel position. (Complaint PP 49-59, 69-85.) WLIG contends that by denying access to its television system, Cablevision precluded WLIG from effectively competing with Cablevision for television advertising in Nassau and Suffolk Counties.
Effective June 1993, Cablevision was compelled by law to carry WLIG pursuant to the Congressional enactment of the Cable Television Consumer Protection and Competition Act of 1992 (the "Act"). Specifically, the Act contains "must-carry" provisions requiring that local broadcast station signals be carried by cable television systems. WLIG contends that even after June 1993, Cablevision is not in compliance with the Act and the Federal Communications Commission (the "F.C.C.") regulations promulgated thereunder, because it is not carrying WLIG as part of the basic service package in two prime areas in Long Island, Woodbury and Huntington. (Complaint PP 108-110.)
The "must-carry" provisions of the Act have generated litigation both in federal court (the District of Columbia) and before the F.C.C. The Supreme Court recently considered a First Amendment challenge to the "must-carry" provisions in Turner Broadcasting System, Inc. v. Federal Communications Commission, No. 93-44, slip op. (1994)
In Turner, the Supreme Court described the advantages posed by cable stations over broadcast stations as twofold: (1) superior reception and (2) increased channel carrying capacity. Id., slip op. at 3. Signals transmitted by broadcast travel are subject to interference by obstacles such as hilly terrain. Cable transmission, on the other hand, is facilitated by point-to-point connections between a transmitting facility and televisions of individual subscribers via cable or optical fibers located both above and underground. Id., slip op. at 2. Cable technology thereby eradicates reception interference common to broadcast transmissions and enables cable systems to provide a wide selection of channels to viewers. Id. Accordingly, carriage of its signal on a cable system is often critical to the success or failure of a broadcast television station. See generally id.
In part, WLIG seeks to modify the Confidentiality Order entered on December 15, 1993, by Magistrate Judge Orenstein (on consent of the parties), so that currently protected documents and testimony can be available for use in connection with Turner Broadcasting System, Inc. v. Federal Communications Commission, 819 F. Supp. 32 (D.D.C. 1993), 114 S. Ct. 2445, 129 L. Ed. 2d 497, 62 U.S.L.W. 4647 (1994) (on remand). WLIG also seeks to use these documents and testimony in conjunction with: (1) a petition filed with the F.C.C. by Cablevision requesting a waiver of the "must-carry" regulations wherein, inter alia, Cablevision seeks permission to carry WLIG only in Long Island rather than in the New York ADI; and (2) an administrative complaint which WLIG's counsel advises the undersigned it may file with the F.C.C. against Cablevision.
A. Attorney-Client Privilege
The attorney-client privilege protects communications between a client and an attorney but does not shield facts underlying the communications. Upjohn Co. v. United States, 449 U.S. 383, 395, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981). The purpose of this "oldest of privileges" is "to encourage full and frank communications between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice." Id. at 389.
The Second Circuit recently admonished that "an uncertain privilege -- or one which purports to be certain, but results in widely varying applications by the courts -- is little better than no privilege." In re Von Bulow, 828 F.2d 94, 100 (2nd Cir. 1987). However, the Second Circuit has also advised that the attorney-client privilege "cannot at once be used as a shield and a sword." United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991), cert denied, 502 U.S. 813, 112 S. Ct. 63, 116 L. Ed. 2d 39 (1991). Under certain circumstances the attorney-client privilege is deemed waived:
A defendant may not use the privilege to prejudice his opponent's case or to disclose some selected communications for self-serving purposes. . . . Thus, the privilege may implicitly be waived when defendant asserts a claim that in fairness requires examination of protected communications. Id. at 1292.
In Bilzerian, the Second Circuit found that the defendant had impliedly waived the attorney-client privilege because his conversations with counsel on the legality of his securities schemes were "directly relevant in determining the extent of his knowledge and, as a result, his intent" and put "the basis of his understanding of what the law required in issue." Id. Accordingly, Cablevision's requests turn on whether WLIG can be said to have waived the attorney-client privilege.
B. Equitable Doctrines
WLIG has sought to bypass the four-year statute of limitations established in the Clayton Act by invoking equitable doctrines. WLIG has alleged in its complaint that notwithstanding its due diligence -- because of Cablevision's fraudulent concealment and fraudulent inducement -- it could not have discovered the basis for its antitrust claims until May 3, 1993. Namely, WLIG points to Cablevision's assurances, characterized as false, that carriage would be provided as soon as either a station became available or a channel upgrade (from 36 to 52 channels) was completed. (Complaint PP 42, 94-97.) On May 3, 1993, WLIG's counsel purportedly "discovered" a statement in Cablevision's Annual Report for 1992 (a Form 10-K filed with the Securities Exchange Commission on March 24, 1993), which undercut Cablevision's assurances that it would carry WLIG as soon as an upgrade was completed; the Annual Report indicated that a channel upgrade had been completed as of December 31, 1992.
(Complaint P 118.)
A plaintiff who calls upon the doctrine of fraudulent concealment (equitable tolling) to toll the statute of limitations bears the responsibility of establishing:
(1) that the defendant concealed from him the existence of his cause of action, (2) that he remained in ignorance of that cause of action until some point within four years of the commencement of his action, and (3) that his continuing ignorance was not attributable to lack of diligence on his part. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2nd Cir. 1988), cert. denied, 488 U.S. 848, 102 L. Ed. 2d 101, 109 S. Ct. 128 (1988).