United States District Court, E.D. New York
April 4, 2005.
TERRY MORRONE, Plaintiff,
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.
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.
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 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 N.Y. Code R.
& Regs. tit. 9 § 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." Id. § 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." N.Y. Comp. Codes R. & Regs. tit. 9 § 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).
Section 531(e) of the Cable Act states:
Subject to section 624(d) [47 USCS § 544(d)], a cable
operator shall not exercise 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
47 U.S.C. § 531(e).
The express purpose of this section is to "assure that cable
communications provide and are encouraged to provide the widest
possible diversity of information sources and services to the
public." 47 U.S.C. § 521(4). In passing this legislation,
Congress intended the absence of editorial control to further the
goal of public access channels, which is to "provide groups and
individuals who generally have not had access to the electronic
media with the opportunity to become sources of information in
the marketplace of ideas." H.R. Rep. No. 98-934, at 30 (1984),
reprinted in 1984 U.S.C.C.A.N. at 4667.
The Second Circuit has held that an implied private cause of
action exists under § 531(e) for improperly exercising editorial
control. McClellan v. Cablevision of Connecticut, 149 F.3d 161 (2d Cir. 1998). A cable corporation
that provides channels for public access is prohibited from
exercising any editorial control, except with regard to
obscenity. See Glendora v. Cablevision Systems Corp.,
45 F. 3d 36, 38 (2d Cir. 1995). The Second Circuit has interpreted the
prohibition against editorial control set forth in § 531(e) to
mean that cable operators are precluded "from attempting to
determine the content of programming that is within the PEG
categories." Time Warner Cable v. Bloomberg, L.P.,
118 F.3d 917, 928 (2d Cir. 1997).
However, whether an implied right of action still exists under
this statute is questionable. Subsequent to the cases that held
that a private right of action does exist under § 531(e), the
Supreme Court has retreated from its position of implying a cause
of action where Congress has not expressly provided for one.
See Alexander v. Sandoval, 532 U.S. 275, 149 L. Ed. 2d 517,
121 S. Ct. 1511 (2001). Several courts have recently concluded
that this pronouncement abrogates any private right of action
under § 531(e). See Leach v. Mediacom, 240 F. Supp. 2d 994,
996 (D. Iowa 2003), aff'd, Leach v. Mediacom, 373 F.3d 895,
896 (8th Cir. 2004); Egli v. Comcast of Pa., LLC, 2004 U.S.
Dist. LEXIS 19740 (E.D. Pa. 2004). In this case, it is unnecessary for the Court to determine
whether a private right of action exists at this time. Here, no
credible evidence has been presented to show that the new system
is discriminatory in any manner. Insofar as the new system is
non-discriminatory, there is little likelihood of the Plaintiffs
succeeding. The Cable Act prohibits cable operators from
exercising editorial based decisions. The changes that
Cablevision wishes to implement appear to be neutral with regard
to content. Regulations that are content neutral are not
prohibited under § 531(e).
In fact, Cablevision's new system appears to be much fairer by
permitting access to producers who cannot stand in line overnight
waiting for a time-slot. For example, sick and disabled persons
were at a disadvantage under the former system. Under the new
system, a greater number of persons have access to public
television time-slots, instead of allowing only those persons who
can wait overnight in a line outside of Cablevision's office. In
addition, the Court finds that the new system furthers the intent
of the Cable Act by "provid[ing] the widest possible diversity of
information sources and services to the public."
47 U.S.C. § 521(4). Also, the parties have informed the Court that the NYSPSC has
instituted an administrative proceeding to determine whether the
new system complies with its regulations requiring public access
channels be given out "on a first-come,
first-served, nondiscriminatory basis." N.Y. Code Rules & Regs.,
tit. 9, § 595.4 (c)(4). This proceeding was prompted by petitions
from Annie McKenna Faraldo, one of the Plaintiff's supporters who
appeared at the order to show cause hearing. The NYSPSC has
administrative jurisdiction over this matter. See N.Y. Pub.
Serv. Law § 211. The Supreme Court has enunciated a principle
known as the "Burford abstention." This doctrine instructs:
Where timely and adequate state-court review is
available, a federal court sitting in equity must
decline to interfere with the proceedings or orders
of state administrative agencies: (1) when there are
difficult questions of state law bearing on policy
problems of substantial public import whose
importance transcends the result in the case then at
bar; or (2) where the exercise of federal review of
the question in a case and in similar cases would be
disruptive of state efforts to establish a coherent
policy with respect to a matter of substantial public
New Orleans Pub. Serv., Inc. v. Council of New Orleans,
491 U.S. 350
, 361, 109 S. Ct. 2506; 105 L. Ed. 2d 298 (1989) (citations and quotations omitted); see also, Tribune
Co. v. Abiola, 66 F.3d 12 (2d Cir. 1995).
Here, all of the factors are present to apply the Burford
Abstention doctrine. The Plaintiff seeks only equitable relief.
The NYSPSC has instituted timely proceedings to determine whether
Cablevision is in compliance with the regulations, and the state
has an interest in having a coherent policy in this area. Without
a coherent policy, different cable providers in different
locations may receive unequal treatment under the applicable
regulations. There is also an appeal process from the decision
that the NYSPSC will render under New York law known as an
Article 78 proceeding. As such, it appears that it is proper for
this Court to abstain from a decision in this case at this time.
To clarify what was pronounced at the Court's oral rendering of
its decision in this matter, a discussion regarding the Burford
abstention doctrine is necessary. The Burford abstention doctrine
is applied in order to avoid needless conflict with
administration by a state of its own affairs. See Weiser v.
Koch, 632 F. Supp. 1369, 1384 (S.D.N.Y. 1986). Under the
doctrine, a federal court has the power to refrain from hearing a
case that it could readily handle where it is duplicative of a
pending state proceeding. See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800,
96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). "[I]t has long been established
that a federal court has the authority to decline to exercise its
jurisdiction when it `is asked to employ its historic powers as a
court of equity. . . .'" Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 717, 116 S. Ct. 1712; 135 L. Ed. 2d 1 (1996). However,
the Second Circuit has cautioned that abstention is the exception
and should only be applied in very limited circumstances. See
Hachamovitch v. Debuono, 159 F.3d 687, 697 (2d Cir. 1998);
United Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 593 (2d
A court has three options when it decides to refrain from the
action under the Burford abstention doctrine. The court may
dismiss the action, remand the action to state court if it was
commenced there, or stay the action. See id. at 721,
116 S. Ct. 1712; 135 L. Ed. 2d 1. The Supreme Court has held that "an
order merely staying the action `does not constitute abnegation
of judicial duty. On the contrary, it is a wise and productive
discharge of it. There is only postponement of decision for its
best fruition.'" Id. (quoting Louisiana Power & Light Co. v.
City of Thibodaux, 360 U.S. 25, 29,79 S. Ct. 1070,
3 L. Ed. 2d 1058 (1959).
In this case the Court finds that the appropriate course of
action is to stay this case during the pendency of the state
proceeding. Waiting until the NYSPSC determines whether the new
system complies with state regulations conserves judicial
resources and avoids duplication or inconsistent findings. The
NYSPSC is not only better situated in interpreting its own
regulations, but also has an interest in applying a consistent and coherent policy in this area. Inconsistent
application of the cable regulations may lead to problems in
other locations that are not serviced by Cablevision.
This Court will retain jurisdiction "in order to insure a just
disposition of this litigation should anything prevent a prompt
state court determination." Kaiser Steel Corp. v. W.S. Ranch
Co., 391 U.S. 593, 594 (1968). At the conclusion of the state
court proceedings, if necessary, this Court will vacate the stay
to adjudicate any federal claims that could not be litigated and
are not "inextricably intertwined" with any issue decided in the
state court proceeding. See, e.g., Hachamovitch,
159 F.3d at 694 95 (explaining the limits of federal court jurisdiction
under the Rooker-Feldman doctrine). If the state court prejudices
a federal right of the parties, this can be redressed by review
of the state decision in the United States Supreme Court. See
17A Wright, Miller, & Cooper, Federal Practice and Procedure §
4245 (2d ed. 1988 & Supp. 2005).
As for the Plaintiff's section 1983 claim, it is clear that
Cablevision is not a state actor, nor does the Plaintiff allege
that the Defendant is a state actor or is acting under color of
state law. Also, the courts have routinely held that public
access channels are not First Amendment "public forums" for the
purposes of state action. Glendora v. Hostetter,
916 F. Supp. 1339, 1341 (S.D.N.Y. 1996); accord Glendora v. Cablevision
Systems Corporation, 893 F. Supp. 264, 269 (S.D.N.Y. 1995); see
also Alliance for Community Media v. FCC, 56 F.3d 105, 120-21 (D.C.
Cir. 1995). Thus, there is no likelihood of success on any claim
under section 1983 against Cablevision.
For the above reasons, the Court finds that the Plaintiff does
not have a likelihood of success on the merits or a sufficiently
serious questions going to the merits. Moreover, in the Court's
view the Plaintiff has failed to show how there is a likelihood
of irreparable harm. The Plaintiff claims that the Lottery system
will lead to his show being aired less frequently and at
different times, or in the worst case, not at all. However, these
perceived harms are not irreparable. These alleged "harms" can
only lead to a loss in their viewing audience and to their
prestige. The Plaintiff can utilize alternate means to ensure
that their audiences are aware of the air times of their shows,
such as advertising, publicity, the internet, or other
information disseminating mediums. Indeed, at oral argument the
Plaintiff alluded to self-help remedies under the new system such
as having friends and family apply for specific time-slots for
him, thereby increasing his chance of obtaining the most desired
time-slot. As such, the Court cannot find any irreparable harm that may occur if the
proposed system continues to be implemented.
Having given the parties an opportunity for oral argument, and
based on the foregoing it is hereby
ORDERED, that the Plaintiffs motion for a preliminary
injunction is DENIED; and it is further
ORDERED, that the action is stayed pending the determination
of the NYSPSC; and it is further
ORDERED, that the parties are directed to report to the Court
within sixty days of the date of this order regarding the
progress of the pending action before the New York State Public
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