McClellan v. Cablevision of Connecticut, Inc.
| Citation | 949 F.Supp. 97 |
| Decision Date | 06 January 1997 |
| Docket Number | Civil No. 3:96CV2077 (PCD). |
| Parties | Jerry McCLELLAN, et al., Plaintiff, v. CABLEVISION OF CONNECTICUT, INC., et al., Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Court (Connecticut) |
Raymond M. Hassett, Louis N. George, Jeffrey M. Siegel, Hassett, George & Siegel, Hartford, CT, John S. Rubrich, Hartford, CT, for Plaintiffs.
James F. Stapleton, Jonathan B. Tropp, Day, Berry & Howard, Stamford, CT, for Defendants, Cablevision of Connecticut, Inc.; Cablevision of Connecticut, Limited Partnership; and Cablevision of Southern Connecticut L.P.
Mark F. Kohler, Attorney General's Office, Public Utility Control, New Britain, CT, for Richard Blumenthal, Attorney General.
Robert T. Perry, Brooklyn, NY, for Media Access New York.
RULING ON PENDING MOTIONS
Plaintiffs allege violations of the Cable Communications Act, 47 U.S.C. § 521 et seq. ("CCA") (Count I) and Connecticut's Unfair Trade Practices Act, Conn.Gen.Stat. § 42-110a et seq. ("CUTPA") (Count II) and seek a preliminary injunction preventing defendants from denying plaintiff Jerry McClellan ("McClellan") access to defendants' television studios and from airing his programming. Defendants move to dismiss, asserting that plaintiffs do not have a private cause of action under 47 U.S.C. § 531(e) and that supplemental jurisdiction over the CUTPA claim should be declined. For the reasons that follow, defendants' motion to dismiss is granted.
Facts relevant to this motion are alleged as follows. In February 1990, McClellan began producing programming with an "adult comedy" format for public access television. His shows were broadcast on defendants' stations' public access channels. After his show aired on August 19, 1996, on or about August 21, 1996, McClellan was informed that his program would no longer be aired by defendants and he would be denied access to defendants' public access studio.
Defendants move to dismiss the CCA count pursuant to Fed.R.Civ.P. 12(b)(6). Such a motion should be granted only when "it appears beyond doubt" that a plaintiff fails to state any claim upon which relief may be granted. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). All facts alleged are presumed to be true and are considered most favorably to the nonmovant. Williams v. Avco Lycoming, 755 F.Supp. 47, 49 (D.Conn.1991).
Plaintiffs allege that defendants' denial of access to the studio and the refusal to air his program on their public access channels is editorial control violative of 47 U.S.C. § 531(e). Public access channels are designated for public, educational or governmental use. Section 531(e) provides that "a cable operator shall not exercise any editorial control over ... use of [public access] channel capacity ... 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."
Defendants contend that plaintiffs do not have a private cause of action to enforce § 531(e). Neither § 531(e) nor any other statute explicitly authorizes a private cause of action for a violation of § 531(e). The question of whether an implied cause of action exists under § 531(e) is guided by the following factors: (1) whether plaintiff is one for whose special benefit the statute was enacted; (2) whether there is explicit or implicit legislative intent to create or deny such a remedy; (3) whether an implied cause of action is consistent with the underlying purposes of the legislative scheme; and (4) whether the cause of action is left by tradition to state law, in an area basically the concern of the states and therefore it is inappropriate to infer a cause of action based solely on federal law. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975).
Plaintiffs rely on Glendora v. Cablevision Systems Corp., 893 F.Supp. 264 (S.D.N.Y.1995) for their assertion that these four factors are present and that a private cause of action should be implied.1 The Glendora court found all four factors present. Defendants assert that a subsequent decision by the Supreme Court, Denver Area Educational Telecommunications Consortium v. Federal Communications Commission, ___ U.S. ___, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996), has called into question the reasoning relied on in Glendora.
As to the Cort second factor,2 the Glendora court noted that the enforcement provision applicable to public access stations, § 531(c), did not explicitly include § 531(e).3 Glendora, 893 F.Supp. at 268. Title 47 U.S.C. § 531(c) provides:
A franchising authority may enforce any requirement in any franchise regarding the providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for services, facilities, or equipment proposed by the cable operator which relate to public, educational, or governmental use of channel capacity, whether or not required by the franchising authority pursuant to subsection (b) of this section.
47 U.S.C. § 531(c) (emphasis added). The court noted that § 531(c) was permissive and only applied to the § 531(e) requirement if a specific franchise agreement incorporated federal law. Glendora, 893 F.Supp. at 268.4
The court also noted that the CCA explicitly conferred a private cause of action to aggrieved persons for a violation of a similar editorial control provision regarding leased access cable programming, which is programming on channels made available for commercial lease by unaffiliated third parties. Id.; see 47 U.S.C. §§ 532(c)(2) and (d). It found that the similarity between the leased access and the public access editorial control provisions supported the conclusion that Congress intended a private cause of action for the public access users. Glendora, 893 F.Supp. at 269. The court stated an overarching concern regarding the second factor: "[I]t is difficult to believe that Congress provided a panoply of enforcement mechanisms for leased access producers without intending to provide any direct method of enforcing public, educational, or governmental access to cable channels." Id. at 268.5
The Glendora court concluded that, as to factor three, the CCA's stated goal to "assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public" was furthered by a private cause of action for the public access user. Id. at 269; See 47 U.S.C. § 521(4).
Factor four was satisfied, according to the court, as the claim would not be traditionally relegated to state law because one of the purposes of the CCA is to "establish a national policy concerning cable communications." Glendora, 893 F.Supp. at 269; See 47 U.S.C. § 521(1).
The absence of an explicit provision of a private remedy to enforce § 531(e) is a sharp contrast to the panoply of enforcement mechanisms available to leased access users.
Denver calls into question the Glendora court's conclusion regarding the second, third and fourth Cort factors. The Denver decision explains why Congress may have provided a "panoply" of enforcement mechanisms for leased access channels, and not provided the same for public access channels. In Denver, the Court examined the constitutionality of several provisions of the Cable Television Consumer Protection and Competition Act of 1992 ("Cable Consumer Protection Act") which amended §§ 531 and 532 of Title 47. The two provisions relevant to the instant analysis permitted a cable operator to prohibit broadcasting of programming the "operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner." Cable Consumer Protection Act, § 10(a) () and § 10(c) ().
In determining the provisions' constitutionality, the Court examined the historical and institutional differences between leased access and public access channels. It noted that while leased channels maintained total control of programming during their time slot, public access channels are normally subject to various complex supervisory systems. Denver, at ___, 116 S.Ct. at 2394.
Municipalities generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may also be the municipality, or, in some instances, the cable system owner.... Access channel activity and management are partly financed with public funds — through franchise fees or other payments pursuant to the franchise agreement, or from general municipal funds ... — and are commonly subject to supervision by a local supervisory board.
Id. at ___ - ___, 116 S.Ct. at 2394-95. Through these systems, programming policy can be made and the system policed by various methods including certification of compliance with local standards and adult content advisories. Id. at ___, 116 S.Ct. at 2395. Regardless of the methods used to control public access programming, the result is the same: a locally accountable body to control the content of public access programming. Id. at ___, 116 S.Ct. at 2395.
The Court found that the provision permitting the cable operator to maintain editorial control of the public access programming "could radically change present programming-related relationships among local community and nonprofit supervising boards and access managers, which relationships are established through municipal law, regulation and contract ... [and] would greatly increase the risk that certain categories of programming ... will not appear." Id. at ___, 116 S.Ct. at 2397. The origin of public access channels was cited to be state law.6 See Conn.Gen.Stat. § 16-331a, 333(c); Regs. Conn.State Agencies §§ 16-333-31 to -36.
This analysis explains why Congress would have purposely included a private cause of action for alleged...
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McClellan v. Cablevision of Connecticut, Inc.
...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 ......