Congress also provided that an aggrieved person may seek relief from the Federal Communications Commission. See 47 U.S.C. § 532(e) ("Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available pursuant to this section may petition the Commission for relief under this subsection upon a showing of prior adjudicated violations of this section."). The similarity between Sections 531(e) and Section 532(c)(2) supports the conclusion that Congress intended at least a private federal cause of action to exist for public access users.
As required by the third Cort factor, the Court concludes it is "consistent with the underlying purposes of the legislative scheme" for an implied right of action to exist under Section 531(e). One of the stated purposes of the Cable Act is to "assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public." 47 U.S.C. § 521(4). Recognizing a private right of action for public access users under Section 531(e) furthers this goal. Often, public, governmental, and educational entities offer unique or minority viewpoints which may remain unrepresented in leased access programming. A user's right to seek redress in federal court for unlawful editorial control encourages cable operators to provide diverse information sources and services to the public, as was contemplated when these systems were authorized.
Finally, the claim here is not "one traditionally relegated to state law, in an area basically the concern of the States." Cort, 422 U.S. at 78. A purpose of the Cable Act is to "establish a national policy concerning cable communications." 47 U.S.C. § 521(1). Congress has deemed it a national policy to insure that cable operators refrain from exercising improper editorial control. Accordingly, consistently with the mandate of our Court of Appeals, this Court concludes as a matter of law that the Cort factors as applied here support a conclusion that Congress intended to provide an implied right of action under Section 531(e).
Glendora also asserts a claim pursuant to 42 U.S.C. § 1983 for violation of her rights under the First and Fourteenth Amendments of the United States Constitution. To recover under Section 1983, a plaintiff must show the alleged violation occurred "under color of state law," which "has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment." United States v. Price, 383 U.S. 787, 794 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966).
Our Court of Appeals in Jensen v. Farrell Lines, Inc., 625 F.2d 379, 384 (2d Cir. 1980), cert. denied, 450 U.S. 916, 67 L. Ed. 2d 341, 101 S. Ct. 1359 (1981), identified "two general approaches that the [Supreme] Court has used to determine whether seemingly private action is in fact state action." First, the "state-function approach" examines whether "the conduct of the private actor is equivalent to the performing of a state function, or is traditionally associated with sovereignty." Id. at 384. Under this approach, "it is not enough if the private entity is merely affected with the public interest; it must exercise powers 'traditionally exclusively reserved to the State.'" Id. The second approach is to examine "whether the state and the private actor have a 'symbiotic relationship,' . . . making them so significantly involved with one another as to render the private actor subject to the constitutional responsibilities of the state." Id. (citations omitted). A related inquiry asks, "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Id. at 385.
This Court concludes that Cablevision is not a state actor under either approach. The ownership and operation of an entertainment facility are not powers traditionally exclusively reserved to the State, nor are they functions of sovereignty.
Nor does a "symbiotic relationship" exist between the State and Cablevision. That Cablevision is subject to state and federal regulation, or operates pursuant to a franchise, does not transform its actions, including decisions to cancel public access programs, into actions of the government. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358-59, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974) (regulation of privately owned distribution of electricity to the public does not render decision to terminate service state action). "That a private entity performs a function which serves the public does not make its acts state action." Rendell-Baker v. Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982) (termination decision by nonprofit privately operated school not acts of state notwithstanding virtually all of school's income was derived from government funding). Likewise, the fact that government regulations require public access or prohibit censorship does not convert a private entity's decision to violate those regulations into a governmental decision. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972) (discriminatory practices of private club not state action). Similarly, the allegation that Cablevision is a monopoly is insufficient to transform its action into state action. See Jackson, 419 U.S. at 358; Public Utilities Common v. Pollak, 343 U.S. 451, 462, 96 L. Ed. 1068, 72 S. Ct. 813 (1952) (disclaiming reliance on monopoly status of the transit authority in finding state action).
This Court agrees with the Court of Appeals for the District of Columbia, which recently held in Alliance for Community Media v. FCC, 56 F.3d 105, 1995 WL 331052 at *10 (D.C. Cir. 1995), that the public access channels are not First Amendment "public forums." That Court rejected the plaintiffs' assertions that the channels were private property dedicated to public use, and concluded that prior decisions by the United States Supreme Court "cannot support a determination that cable access channels are so dedicated to the public that the First Amendment confers a right on the users to be free from any control by the owner of the cable system." Id. at *12.
Unlike the allegations in Alliance or the cases previously cited, however, Glendora also alleges in the Amended Complaint that cancellation of her weekly public access series was state action because it was prompted by pressure from unnamed Nassau County officials. In Dennis v. Sparks, 449 U.S. 24, 27, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980), the Supreme Court held that a private individual who conspires with government officials, or who is a "willful participant in joint action with the State or its agents," may be sued under Section 1983. Glendora has failed to identify by name any official who influenced Cablevision's decision but claims she will do so once discovery takes place. If joint action between state officials and Cablevision is established, state action may be present.
As our Court of Appeals held in the prior appeal, "like many pro se complaints, Glendora's is verbose where verbosity is unnecessary and sparse where causal allegations are required," but this Court must follow "the well-settled rule, particularly applicable in pro se civil rights actions, that a complaint should not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Glendora, 45 F.3d at 37 (citations omitted). Absent evidence of the actual existence and participation of these unnamed Nassau County officials, however, that portion of the Amended Complaint founded on Section 1983 will have to be dismissed. This branch of the motion to dismiss may be renewed at the close of discovery.
Injunctive relief has already been granted to Glendora against the defendants in a parallel state court case between these same parties. See Glendora v. Kofalt, 162 Misc. 2d 166, 616 N.Y.S.2d 138 (Westchester County 1994) (appeal pending). Glendora concedes that cablecasting of her program was resumed on September 2, 1994. (Amended Complaint at 17). She further states that "each week the program has been cablecast without a hitch. Thomas Garger and assistant Dianne Bennett, in Hicksville where the cablecasting originates, have done their job impeccably and with cheer and good will, efficiency and quality." (Id.). While Glendora may seek to recover compensatory damages in this action, the Court finds no basis for punitive damages.
The motion to dismiss is denied. The defendants' motion to stay discovery is denied. The parties shall complete their discovery in accordance with the applicable rules. A case management conference will be held before this Court on October 20, 1995, at 11 a.m.
DATED: White Plains, New York
July 19, 1995
Charles L. Brieant