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GOLDBERG v. CABLEVISION SYSTEMS CORP.

March 23, 2002

ROBERT M. GOLDBERG, PLAINTIFF,
V.
CABLEVISION SYSTEMS CORPORATION, A DELAWARE CORPORATION, TOWN BOARD OF THE TOWN OF OYSTER BAY, THE LEGISLATIVE BRANCH OF THE TOWN OF OYSTER BAY, A MUNICIPAL CORPORATION, AND THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK, AN EXECUTIVE AGENCY OF THE STATE OF NEW YORK, DEFENDANTS.



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

MEMORANDUM OF DECISION AND ORDER

This action arises out of claims by Robert M. Goldberg ("Goldberg" or the "plaintiff") that Cablevision Systems Corporation ("Cablevision" or a "defendant") violated the Cable Communications Policy Act of 1984 (the "Cable Act"), 47 U.S.C. § 521, et. seq.; 42 U.S.C. § 1985; and the New York Public Service Law ("N.Y.Pub.Serv.L.") by refusing to air his programs on their public access channel until he signed an access user contract. Goldberg also claims that the Town Board of the Town of Oyster Bay (the "Town Board" or a "defendant") and the New York State Public Service Commission ("NYSPSC") violated 42 U.S.C. § 1983 by delegating to Cablevision the power to adopt rules and regulations for the use of its production facilities and its public, educational, and governmental channel capacity.

I. BACKGROUND

The following facts are taken from the amended complaint, the documents incorporated therein by reference, and matters of which judicial notice may be taken. See Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (holding that in deciding a motion to dismiss the complaint, a Court may consider, among other things, facts stated on the face of the complaint, documents incorporated in the complaint by reference, and matters of which judicial notice may be taken); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) (same).

A. Statutory Framework

Cable television operators, such as the defendant Cablevision, are regulated by the Cable Act, 47 U.S.C. § 521, et. seq.; state law, see N.Y. Pub. Serv. Law, Art. 11; and the Official Compilation of Codes, Rules, and Regulations of the State of New York, see 9 NYCRR pt. 595. To the extent that the state and federal statutes differ, the federal statutes control. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-700, 104 S.Ct. 2694, 2699-2701, 81 L.Ed.2d 580 (1984), Cable Television Ass'n of New York, Inc. v. Finneran, 954 F.2d 91, 97-98 (2d Cir. 1992).

Pursuant to the Cable Act, any "governmental entity empowered by Federal, State, or local law to grant a franchise," 47 U.S.C. § 522(10), may provide a cable operator with the authorization to construct or operate a cable system, see 47 U.S.C. § 522(9) (defining franchise). Cable operators must comply with the terms of the resultant franchise agreement in addition to following federal and state law.

The Cable Act permits franchising authorities, typically a local government or municipality, to require cable operators to provide public, educational, and governmental ("PEG") channel capacity on their systems. See 47 U.S.C. § 531(a); Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 734, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (noting that local governments require cable system operators to set aside channels for PEG use in exchange for "permission to install cables under city streets and to use public rights-of-way"). The Cable Act also allows franchising authorities to require cable operators to establish rules and procedures for the use of the channel capacity designated for PEG programming. See 47 U.S.C. § 531(b). However, the Cable Act prohibits cable operators from exercising "any editorial control over any public, educational or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity." 47 U.S.C. § 531(e).

The NYSPSC is responsible for regulating the cable television industry in New York state. See N.Y. Pub. Serv. Law §§ 211, 215. The NYSPSC promulgates minimum standards that are incorporated by law into every franchise agreement. See N.Y. Pub. Serv. Law § 215(b); Goldberg v. Cablevision Systems Corp., 261 F.3d 318, 320 (2d Cir. 2001). Those standards include "provisions regarding access to, and facilities to make use of, channels for . . . public service programs." N.Y. Pub. Serv. L. § 215(2)(b); Goldberg, 261 F.3d at 320.

State regulations provide that New York cable operators with a capacity of 21 or more channels must designate at least one full-time channel for public access and at least one full-time channel for educational and governmental use. See 9 NYCRR § 595.4(b)(1). The regulations define "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). Similar to federal law, the state regulations prohibit franchisees and municipalities from exercising "any editorial control over any public, educational or governmental use of channel capacity designated for PEG purposes." 9 NYCRR § 595.4(c)(8), (9). In addition, § 229(3) of the Public Service Law prohibits cable operators from barring or limiting "any program or class or type of program presented over a . . . channel made available for public access." N.Y. Pub. Serv. Law § 229(3).

B. The Franchise Agreement

Cablevision has a Franchise Agreement ("Agreement") with the Town of Oyster Bay (the "Town") to provide cable television service to residents of the Town. Pursuant to this Agreement, which was approved by the NYSPSC, Cablevision must make available and activate two channels dedicated to PEG access (see Affidavit of Robert M. Goldberg in Support of Plaintiffs Motion for a Preliminary Injunction [Goldberg Affidavit], Exhibit 1, Franchise Agreement ¶ 16.12). Under this Agreement, a PEG Access Channel is a "channel . . . on which non-commercial PEG Access programming is cablecast" (see Franchise Agreement ¶ 1.20). The agreement defines PEG access as: "the right to public, educational and governmental access that Town residents, its schools, its libraries, as well as the Town government have to submit noncommercial programs to the Franchisee for cablecasting on PEG Access channels in accordance with rules established and administered by the FCC, NYSPSC an the Franchisee" (Franchise Agreement ¶ 1.18).

Pursuant to the Agreement, Cablevision is "responsible for developing, implementing, interpreting and enforcing rules for PEG Access Channel use which shall insure that PEG Access Channel(s) and PEG Access Equipment will be available on a first-come non-discriminatory basis" (see Franchise Agreement ¶ 16.4). The Agreement directs Cablevision to comply with federal and state laws regarding PEG access (see Franchise Agreement ¶¶ 16.1, 26.1, 32.1). The terms and conditions of the Agreement are subject to federal and state law as well as FCC and NYSPSC regulations (see Franchise Agreement ¶ 5.1).

C. The First Public Access Contract

Goldberg is a resident of Oyster Bay who offers independently produced television programming to be shown on the public access channel designated by the Agreement between Cablevision and the Town. During an unspecified period of time prior to April 1, 2001, the plaintiff and Cablevision entered into an Access User Contract ("First Access User Contract") (see Goldberg Affidavit, Exhibit 2, First Access User Contract). By signing the First Access User Contract, Goldberg agreed to abide by Cablevision's Access Rules; to reimburse the company for any damage he may cause to Cablevision's equipment and facilities; to reimburse or indemnify Cablevision for any liability that might arise out of the violation of the intellectual property rights of third parties; and to provide programs for cablecasting that do not include obscene or indecent material or advertisements for a lottery (see First Access User Contract). The Court was not provided with a copy of the Access Rules upon which the First Access User Contract was based.

D. The Access User Contract

According to the amended complaint, on an unspecified date prior to April 1, 2001, Cablevision demanded that Goldberg enter into a new Access User Contract that was based on a revised set of access user rules, policies, procedures, and guidelines ("Access User Contract") (see Goldberg Affidavit, Exhibit 3, Access User Contract). Goldberg attached a copy of the revised access user rules to his affidavit in support of his motion for a preliminary injunction upon which the Court is ruling in the present decision (see Goldberg Affidavit, Exhibit 3, Cablevision Public, Educational, and Governmental Access Rules).

The Access User Contract provides, among other things, that public access programmers, such as the plaintiff, agree to abide by Cablevision's Access Rules, including the technical specifications set forth in the Rules (see Access User Contract, ¶¶ 1, 2). By signing the Access User Contract, the public access programmer warrants that his cablecast presentations do not contain obscene material, advertisements for a lottery, or commercial transactions and agrees to submit his program to Cablevision which may edit out any such prohibited material (see Access User Contract ¶¶ 2, 7(b)). The programmer assumes responsibility for all music synchronization rights for the music contained in his presentation and agrees to provide Cablevision with the title and composer of the musical arrangements incorporated in his presentation (see Access User Contract ¶ 3).

In addition, the programmer agrees to indemnify Cablevision for any liability, loss, or damage arising out of any material he supplies to Cablevision in connection with his use of Cablevision's public access channel and with regard to his use of Cablevision's production facilities (see Access User Contract ¶¶ 4, 5). The programmer also agrees to indemnify Cablevision for any liability, loss, or damage it may suffer due to the programmer's violation of the intellectual property rights of third parties (see Access User Contract ¶ 6). The programmer assumes responsibility for the proper care of Cablevision's production facilities and agrees to repair or replace any Cablevision equipment he damages (see Access User Contract ¶ 7(a)).

By signing the Access User Contract, the programmer also agrees to defend any action to which an indemnity applies (see Access User Contract ¶ 8) and to release Cablevision from any legal action, claims, or demands the programmer "ever had, has and may have" (Access User Contract ¶ 9). The programmer agrees not to use the name "Cablevision" when publicizing the programs he intends to cablecast (see Access User Contract ¶ 14). The programmer also stipulates that his programs will be used only for public access cablecasting and "will not be exploited for profit, nonpolitical or commercial fundraising in any fashion" (Access User Contract ¶ 10). According to the Access User Contract, Cablevision must review any material a programmer uses to promote his presentation (see Access User Contract ¶ 11).

On March 29, 2001, Goldberg signed the Access User Contract and an Access User Application and submitted them to Cablevision so that he could cablecast one of his programs on Cablevision's public access channel. However, Goldberg added the following language to the Access User Contract and Access User Application: "Nothing is or has been agreed to that is not in accord with United States and New York State law or that would waive my rights that would otherwise apply." Goldberg alleges that on April 1, 2001, Cablevision unilaterally revoked the First Access User Contract.

On April 3, 2001, one Dianne Bennett ("Bennett"), an Access Supervisor at Cablevision, wrote Goldberg a letter stating that Cablevision was unable to accept his Access User Contract and Application because he had made "unilateral additions/deletions, amendments or comments to either/both of these documents." Bennett returned to Goldberg five of the eight Access User Contracts and Applications he had submitted. She also provided him with clean copies of both documents and invited him to submit them in accordance with Cablevision's Rules. ...


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