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MORRONE v. CSC HOLDINGS CORPORATION

April 4, 2005.

TERRY MORRONE, Plaintiff,
v.
CSC HOLDINGS CORPORATION, TOWN OF HUNTINGTON, and the PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK, Defendants.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

Presently before the court is a request for a preliminary injunction. Terry Morrone (the "Plaintiff") commenced this action by filing a complaint and an order to show cause seeking a temporary restraining order, preliminary injunction, and an order enjoining the defendant Cablevision Systems Corporation (the "Defendant" or "Cablevision") from administering a new system to allocate channel time for public access television. The Plaintiff claims that Cablevision's proposed action violates the Cable Communications Policy Act ("Cable Act"), 47 U.S.C. § 521 — 73, and state laws and regulations relating to cable television, see N.Y. Pub. Serv. Law, Art. 11 and N.Y. Comp. Codes R. & Regs. tit 9 § 595.4. For the reasons set forth below, the Plaintiff's application for a preliminary injunction is denied.

BACKGROUND

  The factual background of this case is clear, uncomplicated, and for the most part, undisputed. The Plaintiff is an amateur producer of a public access television program known as "Alternate Voices," which discusses controversial social and political issues. In the past, Cablevision allocated specific program time slots on public access channels on an in-person "first come, first serve, non-discriminatory basis." This was accomplished by Cablevision informing the public in writing, on their website, and on the public access channel, as well as verbally, of the date and time that a time-slot application could be made. Time-slots consist of either a half-hour or full hour segment, to be aired weekly. Applicants would apply for their preferred time-slots in person by lining up in person at Cablevision's office. One-by-one Cablevision would fill the time slots on the channel on a first come, first serve basis done immediately while the applicant waited. This process was repeated twice a year.

  As alleged in the complaint, retaining the same time slot each week is the main way in which a producer builds an audience or following because cable subscribers do not receive a printed schedule of the public access shows. Once the show is moved to another time slot it is very difficult for the viewer to find it again. As a result, public access producers who desire to keep their time slot have chosen to arrive the night before the day Cablevision designates for the receipt of applications in hopes of increasing their chance of renewing their existing time slot. When Cablevision would open for business in the morning, amateur producers would often be lined up waiting so that they could obtain the time that they previously had.

  This year, Cablevision instituted a new process whereby the public must apply for time-slots by mail and all applications that are mailed on a particular date are then placed in random order by a computer program. This process has been labeled by both parties at times as a computer "Lottery" system. The Plaintiff claims that this system does not meet the "first-come, first-serve, non-discriminatory" requirement of the Cable Act.

  DISCUSSION

  I. Preliminary Injunction Standard

  To obtain a preliminary injunction, a plaintiff must show: (1) irreparable harm; and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits, and a balance of hardships tipping decidedly in the plaintiff's favor. See International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). The Court will now discuss the merits of the Plaintiff's claim.

  II. The Cable Act

  Cable television operators, such as the defendant Cablevision, are regulated by the Cable Act, see 47 U.S.C. § 521 — 73, and state laws and regulations. See N.Y. Pub. Serv. Law, Art. 11; N.Y. Comp. Codes R. & Regs. tit 9 § 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 — 701 (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 (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 New York State Public Service Commission ("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 ...


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