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Marnell v. Carbo

June 27, 2007

MICHAEL MARNELL, PLAINTIFF,
v.
DOROTHY CARBO, MARIAN SCHOETTLE, CHERYL A. GERBER, DAVE EDWARDS, LISA ALT, JEANNIE EDWARDS, DONNA CIVELI, PHIL MEAGHER AND BOB KERSHAW, ALL OF THE ABOVE AS INDIVIDUALS AND AS COMMISSIONERS OF THE KINGSTON PUBLIC ACCESS CABLE COMMISSION, CITY OF KINGSTON, TOWN OF ESOPHUS, TOWN OF HURLEY, TOWN OF KINGSTON AND TOWN OF ULSTER, DEFENDANTS.



MEMORANDUM-DECISION AND ORDER*fn1

I. Background

This case concerns the regulation of the Kingston Public Access cable channel 23 ("KPA"), a public education and government access channel. Plaintiff Michael Marnell ("Plaintiff") produced a broadcast of the Catholic Mass at St. Joseph's Church on KPA from March 1997 through September 2004, when his producer access card was deactivated permanently. Complaint (Dkt. No. 1) at ¶¶ 13-17. Defendants Marian Schoettle, Cheryl Gerber, Dave Edwards, Lisa Alt, Jeannie Edwards, Donna Civeli, Bob Kershaw, and former Defendants Phil Meagher and Dorothy Carbo, were, in September 2004, Commissioners of Kingston Public Access Cable Commission ("KPACC"), which administers and operates KPA. Id. at ¶¶ 3-4. KPACC's Commissioners are appointed by Defendants City of Kingston, Town of Kingston, Town of Esopus, and former Defendants Town of Hurley, and Town of Ulster. Defts. Kershaw and Town of Kingston's Statement of Facts (Dkt. No. 87, Attach. 1) at ¶ 4.

KPACC was created by a resolution of the Common Council of the City of Kingston in May 1995. Defts Marion Schoettle and Town of Esopus' Stat. of Facts (Dkt. No. 80, Attach. 6) at ¶ 3. KPACC's Operating Rules and Regulations prohibit advertisements or other material designed to promote a service, product, business or person. Id. at ¶ 21. KPACC rules define commercial material in an access program as a "minor violation." Id. at ¶ 26. "Major violations," including "chronic and/or willful disregard for KPA policies," can result in disciplinary actions and probationary sanctions. Id. at ¶¶ 24-25.

Plaintiff received financial support for the production of the show from various underwriters. Id. at ¶¶ 53, 58. In the broadcast of his show, Plaintiff listed the names and contact information of underwriters and sometimes included slogans or descriptions of the products and services provided by that underwriter. Id. at ¶ 52; Complaint (Dkt. No. 1) at ¶ 15; Plntf's Responsive Stat. of Facts (Dkt. No. 88, Attach. 3) at ¶ 52. Plaintiff's maximum number of underwriters per broadcast was approximately forty (40). Defts Schoettle and Town of Esopus's Stat. of Facts (Dkt. No. 80, Attach. 6) at ¶ 46. After deducting production and administration costs, Plaintiff realized a net profit of $6,956, $6,903 and $5,383 from the underwriters' financial support of his show in 2001, 2002, and 2003, respectively. Id. at ¶¶ 63, 69, 73.

In 2003, Sheldon Zimbler, then Chairperson of the KPACC, complained to Plaintiff about his use of underwriters. Exam. of Plaintiff (Dkt. No. 81, Ex. L) at 92. Plaintiff did not believe that he was doing anything wrong and, accordingly, declined to change his underwriting practices. Id. at 93. In May 2004, the KPACC posted a sign in the KPA studios limiting the number of underwriters to two (2), effective June 2004, with violation resulting in suspension of producer privileges. Id. at ¶¶ 122-123,126. Plaintiff acknowledges having seen and understood this sign when it was posted. Exam. of Plaintiff (Dkt. No. 81, Ex. L) at 98. On July 11, 2004, Defendant Marian Schoettle, KPA Commissioner at the time, spoke with Plaintiff and sent him a letter stating that his show was not in compliance with New York law concerning underwriting. Letter (Dkt. No. 80, Ex. 8); Exam. of Plaintiff (Dkt. 81, Attach. 13, Ex. L) at 106-108. Plaintiff continued to receive funding and broadcast the names of more than two underwriters per show after this date. Defts Schoettle and Town of Esopus's Stat. of Facts (Dkt. No. 80, Attach. 6) at ¶ 168; Plntf's Responsive Stat. (Dkt. No. 88, Attach. 3) at ¶ 168.

In September 2004, KPACC sent Plaintiff a letter, notifying him that his producer access card would be permanently deactivated on September 17, 2004, based on his alleged violation of KPACC regulations, including the "two underwriters" rule. Complaint (Dkt. No. 1) at ¶ 17; Letter (Dkt. No. 82, Attach. 8, Ex. EE); Defts Schoettle and Town of Esopus's Stat. of Facts (Dkt. No. 80, Attach 6) at ¶ 184.

Pursuant to the KPACC rules and regulations, Plaintiff filed an appeal of the KPACC decision to remove him as producer on December 13, 2004. Complaint (Dkt. No. 1) at ¶ 18; Defts Schoettle and Town of Esopus's Stat. of Facts (Dkt. No. 80, Attach 6) at ¶ 209. KPACC*fn2 upheld the decision to remove Plaintiff on March 17, 2005, and again on April 14, 2005, when a full quorum was present. Complaint (Dkt. No. 1) at ¶ 21; Defts Schoettle and Town of Esopus's Stat. of Facts (Dkt. No. 80, Attach. 6) at ¶ 215-18.

KPA continued to broadcast the Catholic Mass at St. Joseph's Church for a short time after removing Plaintiff. Exam. of Plaintiff (Dkt. 87, Attach 3, Ex. G) at 206-207; Defts. Kershaw and Town of Kingston's Stat. of Facts (Dkt. 87, Attach. 1) at ¶ 15.

Plaintiff filed this action on May 11, 2005, alleging that his removal from the station constituted a violation of his constitutional free speech and due process rights. Complaint (Dkt. No. 1) at ¶¶ 22-23, 30. On July 20, 2006, Plaintiff stipulated to discontinue the action, as against Defendants Carbo, Town of Ulster, Meagher, and Town of Hurley. Stipulation and Order (Dkt. No. 74).

Currently before the Court are Motions for Summary Judgment filed by Defendants Schoettle and Town of Esopus (Dkt. No. 80), Defendants Gerber, Edwards, Alt, J. Edwards and City of Kingston (Dkt. No. 84), Defendants Kershaw and Town of Kingston (Dkt. No. 87), and a Cross-Motion for Summary Judgment filed by Plaintiff (Dkt. No. 88).

II. Discussion

A. Issue of Money Damages/ Declaratory Judgment Plaintiff's

Complaint includes a request for monetary relief, counsel fees and costs, and such injunctive and other relief as may be proper. Complaint (Dkt. No.1) at ¶ 38. However, in his most recent filing, Plaintiff acknowledges that Section 555a of Title 47 of the United States Code, "The Cable Act," bars him from seeking money damages in this case. Plntf's Mem. of Law (Dkt. No. 88, Attach. 7) at 16. See 47 U.S.C. § 555a(a). The Cable Act limits relief in a suit "against a franchising authority or other governmental entity, or any official, member, employee or agent of such authority or entity, arising from the regulation of cable service..." to declaratory or injunctive relief. 47 U.S.C. § 555a(a). Plaintiff seeks, instead, a declaratory judgment that the "two underwriter" rule, passed by the KPACC, is unconstitutional, and that his due process rights were violated. Plntf's Mem. of Law (Dkt. No. 88, Attach. 7) at 16. Plaintiff argues that this declaratory judgment would provide guidance to the parties in the future. Id.

Federal courts have discretionary authority to issue a declaratory judgment of "the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201(a) (2006). However, this authority is limited to "a case of actual controversy." Id.; See also Dow Jones & Co., Inc. v. Harrods, Ltd., 237 F. Supp. 2d 394, 406 (S.D.N.Y. 2002). "Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality" to justify judicial intervention. Golden v. Zwickler 394 U.S. 103, 108 (1969). A case does not meet this requirement of immediacy when there is little chance that the plaintiff will suffer an injury in the future. Id. at 109; McCormick ex rel. McCormick v. School Dist. of Mamroneck, 370 F.3d 275 (2d. 2004) ("A plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must ...


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