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MOSS v. CABLEVISION SYS. CORP.

October 7, 1998

GEORGE MOSS, MARIJUANA REFORM PARTY, THOMAS K. LEIGHTON, JEFFREY C. WRIGHT, AND CORINNE E. KURTZ, Plaintiffs, against CABLEVISION SYSTEMS CORPORATION, A DELAWARE CORPORATION, Defendant.


The opinion of the court was delivered by: SPATT

MEMORANDUM OF DECISION AND ORDER

 SPATT, DISTRICT JUDGE:

 This is another chapter in the cable television era. The plaintiffs, George Moss, the Marijuana Reform Party ("MRP"), Thomas K. Leighton, Jeffrey C. Wright, and Corinne E. Kurtz (collectively, the "plaintiffs" or "Moss") filed this motion by order to show cause for a preliminary injunction, seeking an order compelling the defendant Cablevision Systems Corporation (the "defendant" or "Cablevision") to permit plaintiffs to cablecast on a local public access channel, a segment of The Hippie Talk Show ("The Show"), which contains pictures and voices of legally qualified candidates for public office.

 I. BACKGROUND

 Initially, the Court notes that there are no disputed factual issues. In addition, neither party requested a hearing. Thus, no hearing is required. George Moss is an independent television producer of The Show. In the past, The Show has appeared on Cablevision's public access channel. A public access channel is also referred to as a public, educational, or governmental channel ("PEG"). By statute, a public access channel is defined as a channel "designated for noncommercial use by the public on a first come, first served, nondiscriminatory basis." 9 N.Y.C.R.R. § 595.4(a)(1). Public access channels "are channels that over the years, local governments have required cable system operators to set aside for public, educational, or governmental purposes as part of the consideration an operator gives in return for permission to install cables under the city streets and to use public rights-of-way." Denver Area Educ. Telecomm. Consortium, Inc. v. Federal Communications Comm'n., 518 U.S. 727, 734, 135 L. Ed. 2d 888, 116 S. Ct. 2374 (1996) (citations omitted) ("Denver Area ").

 Recently, Moss taped a segment of the show that featured a forum for candidates of the Marijuana Reform Party ("MRP"). The candidates, who will be on the November 3, 1998 election ballot, include Thomas K. Leighton, Jeffrey C. Wright and Corrine E. Kurtz ("the candidates") who presently are running, respectively, for Governor, Lieutenant Governor, and United States Senator. The taped segment which Moss seeks to air "would be a forum for the candidates of the MRP to appear on camera and express their views on the issues of the day . . . ." (Plaintiffs complaint P 16).

 Cablevision claims that they have denied the plaintiffs the opportunity to broadcast The Show segment featuring the MRP until after the election, due to their "general policy" of excluding all qualified candidates for public office from broadcasting on the public access channel during the sixty day period preceding the election. Cablevision's "policy" is derived from their franchise agreement with the Town of Brookhaven, in which paragraph 15.3 states, "[Cablevision] shall proffer a reasonable policy which shall . . . prohibit access for commercial speech." Cablevision also points to their "Access User Contract" ("the contract") and "Cablevision Systems Corporation Public, Educational and Governmental Access Rules" ("the rules") in support of their "policy." The contract states that the "applicant warrants that its cablecast presentations on the cable television shall not include . . . any material presented by or on behalf of or against a Legally Qualified Candidate." The rules state that "any audio or visual material [that] promotes or is designed to promote the sale of commercial products or services (including advertising by or on behalf of, or in opposition to, candidates for public service) is prohibited in connection with any Access programming."

 Moss claims that Cablevision's prohibition constitutes a violation of the Cable Communications Policy Act of 1984 ("The Cable Act"), 47 U.S.C. § 527 et. seq., specifically, 47 U.S.C. § 531(e) ("section 531[e]") and New York Public Service Law § 229(3) ("section 229[3])", in that Cablevision has unlawfully censored the content of the presentation of the public access channel. Further, Moss argues that if he is not permitted to air the new segment of The Show featuring a forum for the MRP, he will never have the opportunity to express the views of the MRP on Cablevision, prior to the November 3, 1998 election.

 In opposition, Cablevision first contends that The Show segment featuring the MRP would amount to a campaign advertisement, which constitutes a commercial use of their public access channel. Thus, they argue, Cablevision's policy of prohibiting broadcasting of political candidates sixty days prior to the election does not constitute unlawful editorial control. Cablevision also claims that the plaintiffs' motion for a preliminary injunction should be denied as they have failed to exhaust their administrative remedies. In addition, Cablevision argues that the plaintiffs have not shown that they would be irreparably harmed if the Court denied their motion.

 II. DISCUSSION

 A. The Standard for Granting a Preliminary Injunction

 A preliminary injunction is considered an "extraordinary" remedy that should not be granted as a routine matter. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990); Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 273 (2d Cir. 1986); Medical Soc'y of the State of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977); Wandyful Stadium, Inc. v. Town of Hempstead, 959 F. Supp. 585, 591 (E.D.N.Y. 1997). Ultimately, however, the decision to grant or deny this "drastic" remedy rests in the district court's sound discretion. See American Exp. Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998); Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996).

 In the seminal case of Jackson Dairy, Inc. v. HP Hood & Sons, Inc., 596 F.2d 70, 72 (2d. Cir. 1979) (per curiam), this Circuit set forth the applicable standard in this Circuit to obtain preliminary injunctive relief. According to Jackson Dairy, the movant must clearly establish the following: "(a) irreparable harm; and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and the balance of hardships tips in favor of the movant." Id.; see also Alliance Bond Fund, Inc. v. Group Mexicano de Desarrollo, S.A., 143 F.3d 688, 696 (2d Cir. 1998); Maryland Gas. Co. v. Realty Advisory Bd. On Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997).

 A showing of irreparable harm is considered the "single most important requirement" in satisfying the standard. See Alliance Bond Fund, Inc., 143 F.3d at 696; Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (recognizing that "irreparable harm is the single most important prerequisite for the issue of a preliminary injunction"). "A moving party must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages." National Ass'n for Advancement of Colored People, Inc. (NAACP) v. Town of East Haven, 70 F.3d 219, 224 (2d Cir. 1995) (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 [2d Cir. 1989]); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982) ("The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been ...


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