The opinion of the court was delivered by: Wexler, District Judge.
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
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.
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.
III. Public Access and Leased Access Programming: Statutory and
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
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. § 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 ...