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GOLDBERG v. CABLEVISION SYSTEMS CORP.

October 8, 1999

ROBERT M. GOLDBERG AND GEORGE GOLOFF, PLAINTIFFS,
v.
CABLEVISION SYSTEMS CORPORATION, A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

This case has been submitted to the court on the basis of an agreed statement of facts pursuant to Rule 56.1 of the rules of this court. Accordingly, the court considers the case as cross-motions for summary judgment. Finding no need to conduct any further hearings on this matter, the court rules herein on the parties' motions.*fn2

BACKGROUND

I. Public Access Programming

When a cable system operator contracts to provide cable service to a community the operator must enter into an agreement with local authorities allowing for the installation of all necessary equipment in the public streets. As part of the consideration an operator gives for this right, local governments typically require cable companies to set aside certain channels for "public, educational or governmental purposes." Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 734, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) ("Denver Area") (citations omitted). Such programming is commonly referred to as "PEG" programming — the "P" in PEG refers to public access programming. See Time Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 920 (2d Cir. 1997).

Because only a limited number of cable systems can operate within a community, the availability of public access channels which require a cable company to carry programs not originating with the company, promotes diversity in programming. See S.Rep. 102-92, reprinted in, 1992 U.S.C.C.A.N. 1133, 1991 WL 125145 * 100, 136. Thus, public access channels have been described as the "video equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet." Such outlets "provide groups and individuals with the opportunity to become sources of information in the electronic marketplace of ideas." H.Rep. No. 98-934, reprinted in, 1984 U.S.C.C.A.N. 4655, 1984 WL 37495 * 28. Importantly, public access channels are recognized as available "to all, poor and wealthy alike. . . ." H.Rep. No. 98-934, reprinted in, 1984 U.S.C.C.A.N. 4655, 1984 WL 37495 * 39-40.

II. Leased Access

The commercial counterpart to public access channels are "leased access" channels. Leased access channels are those reserved for commercial lease by third parties unaffiliated with the cable system operator. Denver Area, 518 U.S. at 734, 116 S.Ct. 2374. Like public access channels, leased access channels are created pursuant to the cable operator's agreement with local governments. By requiring cable companies to lease channels to entities unaffiliated with the system operator, leased channels, like PEG channels, further the interest of cablecasting diverse views. Unlike PEG channels, however, information communicated on leased access channels may include commercial advertising. See Loce v. Time Warner Entertainment, 1999 WL 387150 *8 (2d Cir. 1999).

III. Public Access and Leased Access Programming: Statutory and
    Regulatory Framework

Federal law also recognizes the importance of leased access programming and provides for the setting aside of such channels. 47 U.S.C. § 532; See Loce v. Time Warner Entertainment, 191 F.3d 256, 264 (2d Cir. 1999) Thus, pursuant to the Cable Act, producers of programs unaffiliated with the cable operator may pay a fee to the cable operator and have their programs cablecasted, along with any commercial advertising, on the leased access channel. Loce, at 264. Like the provision with respect to PEG channels, the cable operator is prohibited from exercising any editorial control over programming carried on leased access channels.

New York State regulation of PEG programming defines the term "public access channel" as a channel designated for "noncommercial use by the public on a first-come, first-served, nondiscriminatory basis." 9 NYCRR 595.4(a)(1). Applicable state law, like federal law, provides that a cable television franchisee may not exercise editorial control over programming on PEG or leased access channels. Thus, the New York Public Service Law provides that "no cable television company may prohibit or limit any program . . . presented over a leased channel or any channel made available for public access or educational purposes." N.Y.Pub.Serv.L. ยง 229(3). Applicable regulations provide that cable television franchisees may not exercise editorial control over PEG usage of channel capacity designated for such purposes. NYCRR 595.4(c)(8). It is further provided that a municipality may not exercise editorial control over any use by the public of a public access channel. 9 NYCRR ...


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