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.
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 ...