149 F.3d 161 (2nd Cir. 1998), 97-7156, McClellan v. Cablevision of Connecticut, Inc.

Docket Nº:97-7156.
Citation:149 F.3d 161
Party Name:Jerry McCLELLAN, Jonathan Cooper, and Notu Bayonne, Plaintiffs-Appellants, v. CABLEVISION OF CONNECTICUT, INC., Cablevision of Connecticut, Limited Partnership, and Cablevision Systems of Southern Connecticut, L.P., Defendants-Appellees,
Case Date:July 17, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 161

149 F.3d 161 (2nd Cir. 1998)

Jerry McCLELLAN, Jonathan Cooper, and Notu Bayonne,




Connecticut, Limited Partnership, and Cablevision

Systems of Southern Connecticut, L.P.,


No. 97-7156.

United States Court of Appeals, Second Circuit

July 17, 1998

        Argued Jan. 27, 1998.

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        Louis N. George, Hassett, George & Siegel, P.C., Hartford, Connecticut for Plaintiffs-Appellants.

        James F. Stapleton, Day, Berry & Howard, Stamford, Connecticut (Allan B. Taylor and Jonathan B. Tropp, Day, Berry & Howard, Stamford, Connecticut, of counsel), for Defendants-Appellees.

        Robert T. Perry, Brooklyn, New York (Brian D. Graifman, Caro & Graifman, New

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York City, of counsel), for Amicus Curiae Media Access New York.

        Before: CALABRESI, CABRANES, and HEANEY, [*] Circuit Judges.

        HEANEY, Circuit Judge:


        Jerry McClellan, Jonathan Cooper, and Notu Bayonne (collectively "appellants") appeal from the January 6, 1997 order of the United States District Court for the District of Connecticut (Peter C. Dorsey, Chief Judge ) dismissing their complaint which alleged violations of the Cable Communications Policy Act ("CCPA"), 47 U.S.C. §§ 521-573, and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. §§ 42-110a to 42-110q, by Cablevision of Connecticut, Inc.; 1 Cablevision of Connecticut, L.P.; and Cablevision of Southern Connecticut, L.P. (collectively "Cablevision"). In its order, the district court held that the CCPA does not provide a private cause of action for the violations alleged by appellants and that, in the absence of a federal claim, supplemental jurisdiction over appellants' CUTPA claims would be improper. Because we hold that the CCPA provides an implied private cause of action, we reverse.


        The relevant facts 2 for this appeal are as follows: Jerry McClellan produced television programming for broadcast on Cablevision's public access channels. Bayonne and Cooper claim that they are viewers of McClellan's public access programming. According to Cablevision, McClellan broadcast a show on August 19, 1996, that contained sexually explicit material.

        Citing alleged violations of its rules, 3 Cablevision informed McClellan that Cablevision's stations would indefinitely refuse to carry any of McClellan's shows on their public access channels. Cablevision also informed McClellan that he would no longer have access to Cablevision's public access studio. On October 10, 1996, appellants brought an action in federal court claiming violations of the CCPA 4 and CUTPA. In addition to money damages, appellants requested a temporary restraining order and preliminary and permanent injunctive relief to prevent Cablevision from continuing to deny McClellan the use of Cablevision's public access studio and from refusing to broadcast McClellan's programs.

        Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Cablevision moved the district court for dismissal, arguing that the CCPA provides no private remedy for violations of 47 U.S.C. § 531(e) and that the

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district court should not exercise supplemental jurisdiction over the remaining CUTPA claims. Appellants opposed the motion, responding that § 531(e) contains an implied cause of action.

        The district court granted Cablevision's motion to dismiss, holding that under Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), § 531(e) provides no implied private cause of action. Having dismissed appellants' federal claim, the district court then declined to exercise supplemental jurisdiction over appellants' CUTPA claim. See McClellan v. Cablevision of Conn., Inc., 949 F.Supp. 97, 102 (D.Conn.1997) ("McClellan I "). In reaching its decision, the district court acknowledged that another district court in this circuit had determined that an implied cause of action exists under § 531(e). See McClellan I, 949 F.Supp. at 99-100 (citing Glendora v. Cablevision Sys. Corp., 893 F.Supp. 264, 268 (S.D.N.Y.1995)). Nonetheless, the district court concluded that Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996), undermined the Glendora holding. See McClellan I, 949 F.Supp. at 99-100. Specifically, the district court relied on Denver 's emphasis on the "various complex supervisory systems" to which public access channels are subject. See McClellan I, 949 F.Supp. at 100 (citing Denver, 518 U.S. at 760-61, 116 S.Ct. 2374). Citing the local "supervisory systems" for public access channels, and the channels' historical development through state and local law, the district court determined that several factors identified in Cort do not support a private cause of action under § 531(e). See McClellan I, 949 F.Supp. at 100-01.


        We review de novo the district court's grant of a rule 12(b)(6) motion to dismiss. See Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 (2d Cir.1997) (citation omitted). Granting a motion to dismiss for a plaintiff's failure to state a claim is only proper where the court has no doubt that the plaintiff can prove no set of facts to demonstrate that the plaintiff is entitled to relief. See id.

        The sole question before us in this appeal is whether § 531(e) provides an implied private cause of action for cable programmers. 5 We agree with the district court that we determine whether § 531(e) contains an implied private remedy by analyzing the statute under the four-prong analysis provided by Cort. See Cort, 422 U.S. at 78, 95 S.Ct. 2080. Under Cort, we first determine whether the plaintiff is one for whose "especial" benefit Congress enacted the statute. Id. (citation omitted). Second, we examine whether there is any indication of an explicit or implicit legislative intent to create or deny a private remedy. See id. (citation omitted). Third, we consider whether implying a private remedy is consistent with the "underlying purposes of the legislative scheme." Id. (citations omitted). Fourth, we determine whether the cause of action is one "traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law." Id. (citations omitted).

        Recent Supreme Court decisions have refocused the Cort analysis to "emphasize the centrality of the second factor--congressional intent," treating the other factors as "proxies for legislative intent." DiLaura v. Power Auth. of N.Y., 982 F.2d 73, 77-78 (2d Cir.1992) (quoting Health Care Plan, Inc. v. Aetna Life Ins. Co., 966 F.2d 738, 740 (2d Cir.1992) and citing Karahalios v. National Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 532-33, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979)). We conclude that the legislative record demonstrates Congress's intent to provide a private cause of action under *165s 531(e), and that the remaining Cort factors support our conclusion.


        Under the first factor, it is clear that McClellan is within the class of intended beneficiaries of § 531(e)'s prohibition of editorial control over public access channels. In enacting § 531(e), Congress was keenly aware that individuals or organizations, other than licensees or owners of various electronic media, do not always have access to those media. See H.R.Rep. No. 98-934, at 30 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4667. The legislative history states that:

Public access channels are often the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas.

        Id. Thus, the core First Amendment rights of individual speakers were of paramount concern to Congress. Moreover, Congress has explained that "[a] requirement of reasonable third-party access to cable systems will mean a wide diversity of information sources for the public--the fundamental goal of the First Amendment." Id.; see also 47 U.S.C. § 521(4) (stating that the CCPA promotes "the widest possible diversity of information sources and services to the public"); cf. Time Warner Cable of N.Y.C. v. Bloomberg L.P., 118 F.3d 917, 929 (2d Cir.1997) ("[M]uch of [public access] programming has a limited, often specialized audience whose needs are not otherwise met."). Because Congress prohibited cable operators from exercising editorial control over public access programming and because Congress clearly concerned itself with the interests of producers of programs broadcast on public access channels, we conclude that the appellant falls within the class of intended beneficiaries of § 531(e).


        Second, there is an implicit legislative intent to create a private cause of action to enforce the rights established under § 531(e). "[I]n situations in which it is...

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