UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ) ) Plaintiff, ) ) ) v.
) ) Time Warner Entertainment - Advance/Newhouse ) Civil No: 3:03-CVPartnership d/b/a Time Warner Cable, (service to ) 0633 (TJM)/(DEP) Glenn Britt, CEO) ) Richard Parsons, CEO, AOL/Time Warner (a general ) ) partner in Time Warner Entertainment ) Advance/Newhouse Partnership) ) Jury Trial ) Demanded Robert J. Miron, CEO, Advance Communications Corp (a general partner in Time Warner Entertainment ) ) - Advance/Newhouse Partnership) ) ) Jon Scott, President, Time Warner Cable, Vestal NY ) Division, ) ) David Whalen, Vice President, Time Warner Cable, ) Vestal NY Division, ) ) Andrew Fleming, General Manager, Time Warner ) Cable, Vestal NY Division, ) MEMORANDUM OF LAW IN SUPPORT OF BOND, SCHOENECK & Defendants SUMMARY JUDGEMENT KING, PLLC By: Jonathan B. Fellows, Esq. Attorneys for Defendants One Lincoln Center Syracuse, NY 13202 Telephone: (315) 218-8000 William Huston, pro se COUGHLIN & GERHART, LLP Attorneys for Defendants 20 Hawley Street PO BOX 2039 Binghamton NY 139022039 Telephone 607-723-9511
PRELIMINARY STATEMENT Defendants submit this memorandum and the affidavit of defendant David J. Whalen in support of a motion for summary judgement dismissing the complaint of plaintiff, William Huston ("Huston"). Huston is a producer of "public access" programming. In his complaint, Huston makes various allegations that defendants have somehow restricted his access to their public access channel. Yet, he does not allege that defendants have ever refused to carry, or excercised editorial control over, any of his programming. Rather, Plaintiff's primary grievance appears to be that defendants will not cover his costs to produce "live" public access programming. His request for relief demands that defendants provide him with free studio time, production assistance and training. However, as will be demonstrated below, the relevant regulations simply require that cable operators afford producers access to a public access channel -- they do not require cable operators to actually produce or to pay for the production of such programming. Accordingly, Huston's complant should be dismissed for failure to state a claim.
BACKGROUND This action was commenced on April 25, 2003 by the filing of a summons and complaint in New York State Supreme Count, Broome County. On May 22, 2003, defendants removed the action to this Court on the grounds that the plaintiff asserted claims arising under the United States Constitution and alleged violations of federal law. Defendant Time Warner Entertainment-Advance/Newhouse Partnership
("TWEAN") has provided cable television service in thie areas throughout the Southern Tier of New York State through the Bnghamton Division of Time Warner Cable ("Time Warner Cable"), Complant ¶ 9; Affidavit of David Whalen, ¶ 1. 1 The complaint contains eight claims in which plaintiff invokes rights under the United States and New York Constitutuions, the Cable Communications Policy Act, 47 USC §§ 521-573 (the "Cable Act"), section 229 of the New York Public Service Law, and Article 9 of the New York Code of Rules and Regulations (the "New York Regulations"). In his first two claims, plaintiff alleges that Time Warner Cable is in violation of New York Regulations because it has failed to provide sufficient channel capacity for public access programming. (Complaint, ¶¶ 37-45). Plaintiff's third claim alleges that Time Warner Cable has exercised editorial control over public access programming in violation of section 229(3) of the Public Service Law, and 47 USC section 531(e) because it does not provide public access producers with a free live studio for a call in program (Complaint, ¶¶ 46-51). Plaintiff's fourth and fifth claims allege that federal law and the New York Regulations require Time Warner Cable to provide free studio time and production facilities to the plaintiff (Complaint, ¶¶ 52-66). The sixth, seventh and eight claims generally allege Time Warner Cable does not provide significant local origination programming, and that Huston's rights have been denied by the failure of the mass media to provide programming in the public interest and by the failure of local municipalties to effectively regulate cable television service. (Complaint, ¶¶ 84-98). In his petition for relief, the plaintff seeks an injunction requring Time Warner Cable to: 1. provide free studio access and production personnel for public access television; -2-
2. provide free classes to teach community members how to use production equipment; and 3. provide community education regarding public access. Complaint, ¶ 99. In addition to these specific requests, Plaintiff's request for relief asks that the Court order Time Warner Cable to "commit" to various principles regarding public access. Plaintiff alleges that he lives in Binghamton, New York and has been active for
several years in public access production. Complaint, ¶¶ 34. Plaintiff alleges that he was previously a subscriber of Time Warner Cable, but according to his own complaint, he has not been a subscriber since June 2000. Complaint ¶ 39. He also asserts that he has produced public access programming. He does not allege that Time Warner Cable has ever edited any of the public access programming he produced. In fact, all of the programming Huston has produced has been carried, and Time Warner Cable has not exercised any editorial control over the plaintiff's productions. Whalen Affidavit, ¶ 8. None of the assertions in plaintiff's complaint raises issues that are justiciable in this Court and thus, the complaint should be dismissed. -3DISCUSSION POINT 1 PLAINTIFF CANNOT ASSERT CLAIMS AGAINST A CABLE OPERARTOR UNDER THE UNITED STATES OR NEW YORK STATE CONSTITUTIONS In various paragraphs, the complaint asserts that plaintiff's rights under both the Federal and New York State constitutions have been violated. Complant ¶¶ 34,53,67,76,92. However, the free speech protections in both the United States and New York State constitutions only apply to state actors, not private entities. The Second Circuit reiterated that fact in Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996). In Leeds, the court stated: It is axiomatic that the First and Fourteenth Amendments, and § 1983 apply only to state actors. At the same time, though, a private individual may be considered a state actor for purposes of a constitutional challenge if his/her conduct is "fairly attributable to the state". Rendell-Baker, 457 U.S. at 838, 102 Sup. Ct. at 2769 (quoting Lugar . Edmonson Oil Co., 457 U.S. 922 102 Sup. Ct. 2744, 2754 (1982). Extensive regulation and public funding, either alone or taken together, will not transform a private actor into a state actor; instead the state must have exerted its coerciev power over, or provided significant encouragement, to the defendant befire the latter will be deemed a state actor. 85 F.3d at 54. The New York Court of Appeals has likewise estanlished that only "state actions" can support a free speech claim under the New York Constitution. In Shad Alliance v. Smith Haven Mall, 66 N.Y.2d 496,498 N.Y.S.2d 99(1985), the Court of Appeals held that plaintiff had no free speech rights under the New York
Constitution against the owner of a private shopping mall on Long Island. The Court of Appeals stated: Thus, it is firmly established that the State and Federal consttutional guarantees of freedom of speech will protect the individual against action by governmental authorities, not by private persons... -4The State action requirement, consistently recognized and reaffirmed in our decisions performs a vital function. Actions of the Federal Government are limited by the Federal Constitution's reservation to State Government's law of powers not expressly granted to it. State governments are not similarly restrained. State constitutional provisions, therefore, protect individual liberty by limiting the plenary power of the state over its citizens. 66 N.Y.2d at 502, 492 N.Y.S. 2d at 103-04 (citations omitted). See also Engstrom v. Kinney System, Inc., 241 A.D. 2d 420,242,661 N.Y.S. 2d 610,614 (1st Dept. 1997) ("The second cause of action, alleging a violation of plaintiff's free speech rights fails as a matter of law since Kinney and Beck are private entities"); Moore v. Suffolk County Police Dept., 151 Misc.2d 160, 579 N.Y.S.2d 575 (Supreme Court Suffolk County 1991) (owner of private property may limit free speech on its property); Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp.2d 289,307 (E.D.N.Y. 2000) (dismissing constitutional claims under federal and New York constutions against registrar of internet domain names and stating that the "New York Court of Appeals has 'consistently recognized and reaffirmed' that the State Constitution 'governs the rights of citizens with respect to their governments and not the rights of private individuals against private individuals'"). Regulated corporations, includng cable television providers, are not state actors subject to a claim under the United States or New York State constitutions. See, e.g., Cox v. Athena Cablevision, 558 F. Supp. 258 (E.D. Tenn 1982), aff'd, 734 F.2d 13 (6th Cir. 1984). The Supreme Court recoginized as much in Denver Area Educational Telecommunications v. FCC, 518 U.S. 727,116 S. Ct. 2374 (1996). In that case, the Supreme Court held that cable operators normally are not state actors subject to the First Amendment. The First Amendment was applicable in Denver because the plaintiffs in that case were challenging the underlying act of Congress that gave cable operators the right to censor patently offensive programming. Here, -5plaintiff does not challenge any act of Congress. He only claims that a private company, Time Warner Cable, has violated his First Amendment rights by institution policies regarding the rental of its studio facilities and its cable personnel. Since those polcies were intituted without state power, plaintiff's First Amendment claims must be dismissed.
POINT II PRIVATE CAUSES OF ACTION AGAINST CABLE OPERATORS WITH RESPECT TO PUBLIC ACCESS ARE LIMITED TO ALLEGATIONS OF EDITORIAL CONTROL. In addition to his constitutional claims, the plaintiff has invoked causes of action under 47 U.S.C. § 531, 2 section 229 of the New York State Public Service Law and various provisions of Article 9 of the New York Code of Rules and Regulations. The New York PSC Regulations do create obligations on cable operatorsd, but these regulations do not create private causes of action and thus, plaintiff's claims must be dismuissed. 3 New York courts have set forth a test for determining wheter a statute creates a private cause of action for enforcement. See. e.g., Carrier v. Salvation Army, 99 N.Y.2d 298, 644 N.Y.S.2d 678 (1966); Brian Hozie's Painting Co. v. CatoMeridian Central School District, 76 N.Y. 2d 207,211,557 N.Y.S. 2d 280, 282 (199). The New York inquiry looks ate three factors: -61. Whether the plaintiff is one of the class for whose particular benefit the statute was enacted; 2. Whether recognition of a private right of action would promote the legislative purpose; and 3. Whether creation of such a right would be consistent with the legislative scheme. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 633,543,N.Y.S.2d 18,20 (1989). The third factor is generally considered the "most critical." Carrier, 88 N.Y. 2d at 302, 644 N.Y.S.2s at 679. Here, plaintiff does not seek to enforce any specific statute in the Public Service Law; rather, he seeks to enforce provisions of the regulations adopted there under. However, no provision in the New York Regulations covering cable television authorizes a member of the public to bring a court action to enforce such regulations. Nor does any provision in Article 11 of the Public Service Law authorize a member of the public to bring a court action to enforce regulaions of the Commission. If a citizen has a complaint regarding any of these regulations, his proper remedy is to file a complaint with the Public Service Commission, which has the power to hold public hearings on the issue and, if warranted, to issue an order of compliance to any cable operators who has failed to comply with PSC regulations. He is not entitled to seek a remedy in court. See, e.g., Hall Heating Co. v. New York State Electric and Gas Corp., 180 A.D. 2d 957, 580
N.Y.S. 2s 528 (3d Dept. 1992). -7Applying the factors identified by the New York courts above, it is clear that the Public Service Law did not create a private right of action. With respect to whether a private right of action would promote the lefislature's purpose and be consistent with the legislative scheme -- the most "critical factor" -- the answer is a resounding no. In section 224-a of the Publc Service Law, the legislature provided a specific scheme of enforcement of PSC regulations which does not envision private legal action: Whenever, upon complaint or upon its own motion, and after giving public notice and an opportunity for a public evidentiary hearing, which accords due process to the cable television company, the commission finds that ca ble television company has not complied with any provision of this section, the commission shall order such compliance therewith and may order such penalty as is hereinafter provided. N.Y.Public Service Law § 224-a(7)(a). In addition to the provisions of the PSC's regulations, cable companies are contractually bound by franchise agreements they enter with the municipalities in which they operate. However, the franchise agreements provide no more support for plaintiff's claims than the PSC regulations. To the extent plaintiff wishes to challenge a provision of a franchise agreement, he may lodge a complaint with the Public Service Commission. The PSC reviews all cable television franchises agreements prior to their adoption to ensure they comply with the New York Regulations and accepts comments from members of the public. See, e.g., Counsel of the City of New York v. Public Service Commission, 286 A.D. 2s 812, 730, N.Y.S.2s 175 (3s Dept. 2001), aff'd, 99 N.Y.2d 64 (2002) (holding that "the PSC is responsible for ensuring complance with [the New York Regulations] requirements." 99 N.Y.2d at 74. If plaintiff believes that the PSC has improperly approved any of Time Warner Cable's franchise agreements, he may institute an Article 78 action n Supreme Court, but he may not sue Time Warner Cable to modify the franchise agreement. -8Accordingly, there is no basis for the Court to imply a private right of action under the various New York Regulations. Nothing in the Public Service Law, or in the regulations set forth in Article 9, indicates that the legislature intended to create a private enforcement mechanism. Thus, all of the plaintiff's claims asserted under those regulations should be dismissed. POINT III PLAINTIFF HAS FAILED TO INDENTIFY
ANY ACTIONABLE VIOLATIONS OF THE NEW YORK REGULATIONS Even if there were a basis for a private cause of action to enforce the New York Regulations, plaintiff's complaint failes to allege any violations of those regulations, much less a violation which has caused him damage. In his first claim, plaintiff alleges that Time Warner Cable has violated 9 N.Y.R.R. § 595.4(b)(1) by failing "to provide at least one fill-time actived channel for public access use, and at least one full-time activated channel for educational and governmental use." Complant, ¶ 30. Section 595.4(b) requires that a cable television franchisee shall designate channel capacity for PEG access as follows: (i) at least one full-time actived channel for public access use; (ii) at least one full time activated channel for educational and government use. 9 N.Y.C.R.R. § 595.4(b). In the systems in the Binghamton Division, Time Warner Cable has designated Channel 6 for publc access use and Channel 12 for educational and government use. Time Warner Cable is thus in compliance with this requirement. Whalen Affidavit. ¶ 5. Plaintiff's -9unsubstantiated allegation (Complaint ¶ 32) that there is insufficient space for public access programming anf that the deficiency ha created "competition" for public access time is incorrect. All publc acccess programming currently being produced for Channel 6 is being carried by Time Warner Cable. Time Warner Cable is willing to carry more public access programming on Channel 6 - there simply os not enough publc access programming being produced to fill the acailable time on Channel 6. Whalen Affidavit. ¶ 7. Plaintiff's second claim alleges that Time Warner Cable has failed to promote public access as required under 9. N.Y.C.R.R. § 595.4(c)(3). In particular, plaintiff alleges that prior to August 20, 2002 Time Warner Cable failed to provide the required notice identifying "the name, address and telephone number of the entity to be contacted for the use of the channel." Complaint, ¶ 43. Time Warner Cable does, in fact, provide notice of public access programming. Whalen Affidavit. ¶ 11. To the extent plaintiff could establish that there was ever a prior violation of the requirement for public notice, there is no basis for a private claim by plaintiff for such a violation. POINT IV
CABLE OPERATORS ARE NOT OBLIGATED TO PROVIDE FREE STUDIO TIME AND PRODUCTION ASSISTANCE Plaintiff's third, fourth, and fifth claims all essentially assert that Time Warner Cable is obligated to provide free studio production facilities to public access users. In particular, plaintiff alleges that he has a right to produce live studio programming at Time Warner Cable facilities wihout charge. Complaint, ¶ 50. Plaintiff further alleges that Time Warner Cable must allow public access producers to use "cameras, studios, lights, port-a-packs, mobile equipment, micropjones, audio mixing boards, audio playback devices, character - 10 generators, a control room to floor communication system, editing devices, etc." Complant ¶ 55. Plaintiff further alleges that Time Warner Cable is obligated to train volunteer crews to operate all of this equipment. Complant ¶ 63. Plaintiff has cited no provison in the Cable Act, the Public Service law, or the New York Regulations which requires Time Warner Cable to provide free production facilties or training to public access producers. Nor has he cited any franchise agreeement in the areas served by Time Warner Cable-Binghamton Division which requires such facilities or training. The New York Regulations merely require that a cable television operator proviude access to facilities and equipment for use the use of channel capacity. In particular, section 595.4(c)(7) states that: the designation of PEG access facilities shall include the provision by the cable television franchisee of the technical ability to play back prerecorded programming and to transmit programming informaton consistent with the designated uses of PEG access channels." 9 N.Y.C.R.R § 595.4(c)(7). In short, the regulations only require cable operator to provide the equipment necessary to "play back prerecorded programming", and in no way require the cable operator to provide the free studio time and production assistance demanded by the plaintiff to produce "live" programming. Plaintiff states that the right to public access somehow should imply a right to free studio time, production assistance, and training but cites no statutory or regulatory provision requiring any such free studio access. Accordingly, plaintiff's claims seeking free assistance must be dismissed. 4 - 11 POINT V
PLAINTIFF'S GENERAL ATTACK ON THE MEDIA FAILS TO STATE A CLAIM Plaintiff's sixth, seventh, and eighth claims are a general attack on the mass media. The sixth claim alleges that the mass media lacks "progressive voices", and that plaintiff's First Amendment rights are therefore violated. Complaint ¶ 6776. The seventh claim alleges that Time Warner Cable "gailes to be a significant source of local origination programming", but fails to identify any violations of the law by Time Warner Cable, much less a specific violation of any rights of plaintiff. Complaint ¶¶ 77-83. Likewise, the eighth claim essentially alleges that there has been insufficient local regulation of cable operators and that corporate media is failing to properly inform and educate the public in various manners. Complant ¶¶ 84-98. Again, plaintiff cites no violation of the law by Time Warner Cable. None of the allegations of the plaintiff raise any violations of federal or state law, or any injury to plaintiff which can be redressed in a court actiojn. As such, these claims should likewise be dismissed for failure to state a claim. POINT VI THE COMPLAINT MUST BE DISMISSED AS AGAINST THE INDIVIDUAL DEFENDANTS In addition to TWEAN, the complaint names five individuals, from Richard Parsons, Chief Executive Office of Time Warner, Inc., to Andrew Fleming, the General Manager of the Binghamton Division of Time Warner Cable. The complaint sets forth no basis for any relief with respect to these individuals. To the extent the complaint asserts rights under the federal and state constitutions, there is no allegation that any of the individuals are "state actors". To the extent the complaint asserts - 12 claims under the Cable Act or the New York Public Service Law, the individual defendants canot be held liable since they are not a "cable operator" 5 governed by the Cable Act or a "cable television company" or "cable television system" governed by the Public Service Law or the New York Regulations. 6 Moreover, the complaint alleges no actions by any of the individual defendants; to the contrary, it only alleges actions by Time Warner Cable. In light of the forgoing, all of the claims against the individual defendants should be dismissed. CONCLUSION
The Court should grant summary judgment dismissing the complaint. Dated: January 23, 2004 Respectfully, BOND SCHOENECK, & KING, PLLC By: _________(signed)__________________ Jonathan B. Fellows, Esq. Bar Roll No. 101628 Attorneys for Defendants One Lincoln Center Syracuse, New York 13202 Telephone: 315-218-8000 COUGHLIN & GERHART, LLP By: Gordon E. Thompson, Esq Bar Roll No. 301432 Attorneys for Defendants 20 Hawley Street PO Box 2039 Binghamton, NY 13902-2039 Telephone: 607-723-9511
Plaintiff has also named five individual defendants in his complaint. However, as is set forth below, Huston has alleged no actions by any of these individuals that would give rise to a claim.
While the United States Court of Appeals for the Second Circuit has recognized a limited private cause of action under 47 U.S.C. § 531 (e) by a public access programmer against a cable company provider that exercises editorial control over the use of its public access channel; in violation of section 531(e), plaintiff does not allege that Time Warner Cable has ever edited, refused to carry or otherwise exercised editorial control over any of his public access programs. See McClennan v. Cablevision of Connecticut, Inc., 149 F.#d 161,164-165 (2d. Cir. 1998); Moss v. Cablevision Systems Corp., 22 F. Supp2s 1,5 (E.D.N.Y. 1998).
Plaintiff can bring no claims under federal law, which is entirely permissive on the ssue of public access programming. Section 611(a) of the Cable Act authorizes franchises to include access channels but it does not require them.
Although not required by the PSC regulations, Time Warner Cable has agreed to provide facilities to produce live programming, but will charge plaintiff a fee for use of the studio facilities and production assistance. Whalen Affidavit, ¶ 15.
47 USC § 521(5) N.Y. Public Service Law, § 212