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GOLDBERG v. CABLEVISION SYSTEMS

August 29, 2003

ROBERT M. GOLDBERG, PLAINTIFF, AGAINST 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: Arthur Spatt, District Judge [ Page 2]

MEMORANDUM OF DECISION AND ORDER
This action arises out of claims by Robert M. Goldberg ("Goldberg" or the "plaintiff") that Cablevision Systems Corporation ("Cablevision") violated the Cablevision 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. Publ. 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") 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 background of this case is incorporated in this Court's memorandum of [ Page 3]

decision and order dated March 23, 2002, familiarity with which is assumed. The relevant facts, which are uncontested, are restated below to resolve the present motions.

A. Factual Background

1. Regulatory 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, 81 L.Ed.2d 580, 104 S.Ct. 2694 (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 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. [ Page 4]

2374 (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." 42 U.S.C. § 531(e).

The NYSPSC, which is responsible for regulating the cable television industry in New York state, 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 [ Page 5]

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).

2. 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. Under this Agreement, a PEG Access Channel is a "channel . . . on which non-commercial PEG Access programming is cablecast." 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 non-commercial programs to the Franchisee for cablecasting on PEG Access channels in accordance with rules established and administered by the FCC, NYSPSC and the Franchisee."

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 [ Page 6]

first-come non-discriminatory basis." The Agreement directs Cablevision to comply with federal and state laws regarding PEG access. The terms and conditions of the Agreement are subject to federal and state law as well as regulations by the Federal Communications Commission and the NYSPSC.

3. 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"). 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.

4. The Second Access User Contract

According to the plaintiff, on an unspecified date prior to April 1, 2001, Cablevision demanded that Goldberg enter into a Second Access User Contract that was based on a revised set of access user rules, policies, procedures, and guidelines ("Second Access User Contract"). The Second Access User Contract provides, among other ...


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