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FOX NEWS NETWORK v. TIME WARNER INC.

April 10, 1997

FOX NEWS NETWORK, L.L.C., Plaintiff, against TIME WARNER INC., TIME WARNER ENTERTAINMENT COMPANY, L.P., TURNER BROADCASTING SYSTEM, INC., and R.E. "TED" TURNER, III, Defendants. TIME WARNER INC., TIME WARNER ENTERTAINMENT COMPANY, L.P., TIME WARNER CABLE OF NEW YORK CITY, PARAGON COMMUNICATIONS d/b/a TIME WARNER CABLE OF NEW YORK CITY, QUEENS INNER UNITY CABLE SYSTEMS d/b/a QUICS, AND TWC CABLE PARTNERS d/b/a STATEN ISLAND CABLE, Counterclaim-plaintiffs, -against- FOX NEWS NETWORK, L.L.C. and THE NEWS CORPORATION LIMITED, Counterclaim-defendants.


The opinion of the court was delivered by: WEINSTEIN

 Weinstein, Senior District Judge:

 TABLE OF CONTENTS

 I. INTRODUCTION

 II. FACTS

 
A. Cable Television Generally
 
B. Cable Television in New York City
 
C. Time Warner/Turner Merger
 
D. The Alleged Conspiracy
 
E. Legal Actions

 III. LAW

 
A. Conspiracy to Violate Section 1983
 
B. Rule 12(b)(6)
 
C. Noerr-Pennington Doctrine

 IV. LAW APPLIED TO FACTS

 
A. Time Warner Has Stated Valid Counterclaims
 
B. Fox is Not Necessarily Protected by Noerr-Pennington

 E. CONCLUSION

 This case arises from a dispute between Time Warner and Fox over Time Warner's decision not to carry Fox News on its cable channels in New York City, and from the City's subsequent involvement in the controversy. See, e.g., Time Warner Cable v. City of New York, 943 F. Supp. 1357, 1391-96, (S.D.N.Y. 1996) (Cote, J.); Clifford J. Levy, An Old Friend Called Giuliani, and New York's Cable Clash Was On, N.Y. Times, November 4, 1996, at B1, B2. Fox and its allies sued Time Warner and its associates for damages, injunctive relief, and specific performance. Time Warner has counterclaimed, seeking damages and injunctive relief.

 Fox moves to dismiss the counterclaims as barred by the Noerr-Pennington doctrine, which prevents suits interfering with the right to petition the government. Its motion is denied.

 II. FACTS

 A. Cable Television Generally

 A discussion of the case requires some knowledge of the structure of the cable industry and of the laws which regulate it. The cable industry is comprised of operators and programmers. Operators own the physical assets of the cable system. They obtain the authority to lay the cable wires which transmit the signals by negotiating "franchise agreements" with local governments. Operators are responsible for managing the provision of cable services. Programmers, in general, produce programs intended for transmission over the cable systems. An operator typically contracts with a programmer if the operator wishes to carry the programming, paying the programmer a set fee per subscriber, per month. Under the complex federal regulatory scheme, cable operators must also retransmit local, over-the-air television programming. See, e.g., Turner Broadcasting ...


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