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.
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).
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
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.
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. ...