Glendora v. Cablevision Systems Corp.

• Decision Date: 19 July 1995
• Docket Number: No. 93 Civ. 8344(CLB).,93 Civ. 8344(CLB).
• Citation: 893 F. Supp. 264
• Parties: GLENDORA, Plaintiff, v. CABLEVISION SYSTEMS CORPORATION, Charles F. Dolan, William J. Bell, Marc A. Lustgarten, Francis F. Randolph, Jr., John Tatta, James A. Kofalt, Joseph Azznara, Thomas Garger, and William Quinn, Defendants.
• Court: U.S. District Court — Southern District of New York

893 F. Supp. 264

GLENDORA, Plaintiff, v. CABLEVISION SYSTEMS CORPORATION, Charles F. Dolan, William J. Bell, Marc A. Lustgarten, Francis F. Randolph, Jr., John Tatta, James A. Kofalt, Joseph Azznara, Thomas Garger, and William Quinn, Defendants.

No. 93 Civ. 8344(CLB).

United States District Court, S.D. New York.

July 19, 1995.

COPYRIGHT MATERIAL OMITTED

Glendora, White Plains, NY, pro se.

Robert M. Callagy, Saterlee Stephens Burke & Burke, New York City, for defendants.

MEMORANDUM & ORDER

BRIEANT, District Judge.

Plaintiff Glendora, an individual who produces video programs, brings this pro se¹ action under the Cable Communications Policy Act of 1984 as amended and supplemented by the Cable Television Consumer Protection and Competition Act of 1992, codified principally in 47 U.S.C. §§ 521 et seq., ("the Cable Act"), as well as the First and Fourteenth Amendments of the United States Constitution. Supplemental state law claims are also asserted. This case is now before the Court on remand pursuant to directions of our Court of Appeals. See Glendora v. Cablevision Systems Corp., 45 F.3d 36 (2d Cir.1995). Familiarity with all prior proceedings and the underlying facts of Plaintiff's claims is assumed. Essentially, Glendora contends her rights were violated when Defendants Cablevision Systems Corporation and its officials (collectively "Cablevision") pressured by unidentified Nassau County officials, canceled her weekly series that dealt with her litigations. Glendora has engaged in numerous other pro se lawsuits in both state and federal court. See, e.g., Glendora v. Gannett Co. Inc., 858 F.Supp. 369 (S.D.N.Y.1994), aff'd, 40 F.3d 1238 (2d Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1435, 131 L.Ed.2d 315 (1995); Glendora v. Dolan, 871 F.Supp. 174 (S.D.N.Y.1994), aff'd, 48 F.3d 1212 (2d Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995); In Matter of Glendora v. New York State Division of Housing and Community Renewal, ___ A.D.2d ___, 628 N.Y.S.2d 343 (2d Dep't 1995); Glendora v. Cohen, ___ A.D.2d ___, 627 N.Y.S.2d 947 (2d Dep't 1995); Glendora v. Duberstein, ___ A.D.2d ___, 625 N.Y.S.2d 648 (2d Dep't 1995); Glendora v. Amicone, ___ A.D.2d ___, 624 N.Y.S.2d 928 (2d Dep't 1995); Glendora v. CBS, Inc., ___ A.D.2d ___, 624 N.Y.S.2d 254 (1995); Glendora v. Gallicano, 206 A.D.2d 454, 615 N.Y.S.2d 44 (2d Dep't 1994), appeal denied, 84 N.Y.2d 967, 621 N.Y.S.2d 514, 645 N.E.2d 1214 (1994); Glendora v. Gannett Suburban Newspapers, 83 N.Y.2d 757, 615 N.Y.S.2d 875, 639 N.E.2d 416 (1994); Glendora v. Kofalt, 162 Misc.2d 166, 616 N.Y.S.2d 138 (Westchester County 1994) (appeal pending). She alleges that her litigation always raises questions of general interest worthy of media coverage. Cablevision contends Glendora uses the cable outlet to further her personal vendettas against her adversaries.

On February 22, 1995, Cablevision moved to dismiss the Amended Complaint. By oral decision on March 24, 1995, this Court denied that portion of the motion to dismiss based on collateral estoppel and mootness. (See Transcript). Here, the Court addresses the merits of Glendora's federal claims.

In resolving this motion, the Court is required to respond to the mandate issued by our Court of Appeals on January 11, 1995, which states that the question "left unanswered" by this Court in previous proceedings is "whether section 531(e) of the Cable Act is applicable herein and, if it is, by whom should its provisions be enforced; specifically, does a violation of section 531(e) give rise to a private federal cause of action." Glendora, 45 F.3d at 38. By remanding the matter to this Court for further proceedings rather than simply affirming dismissal of the action, our Court of Appeals suggests that such an implied right exists.²

Section 531 of the Cable Act provides that, "subject to section 544(d) of this title, a cable operator³ shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section." 47 U.S.C. § 531(e). Section 544(d) permits operator intervention only "if such cable services are obscene or are otherwise unprotected by the Constitution of the United States." 47 U.S.C. § 544(d)(1).

Cablevision alleges the Cable Act is inapplicable herein because Glendora is not entitled to access on its channels in Nassau County and western Suffolk County, New York ("the Long Island System"). The franchise agreements pursuant to which Cablevision operates the Long Island System limit the public access channels to "the public within" the respective municipalities. (See Exhibits C-L attached to Strickland Reply Aff.)⁴ Glendora, a Westchester County resident, does not reside in any county served by Cablevision's Long Island system. However, Glendora alleges she has a sponsor, Virginia Mondesando, who resides in Central Islip, within the Long Island System. (See Letter to Virginia Mondesando, dated September 16, 1993, and Access User Contract, attached to Pro Se Plaintiff's Brief). It is undisputed that beginning in September, 1993, Glendora's video program was broadcasted by Cablevision on its public access channel serving Nassau County. Cablevision thereby admitted her right to be heard on public access. This Court concludes that Glendora's residency does not bar her use of Cablevision's public access channels, or application of Section 531(e) of the Cable Act to this case, especially in light of the sponsoring request of Ms. Mondesando.

To determine whether an implied right of action exists under Section 531(e), this Court's "focal point is Congress' intent in enacting the statute." Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988). Congressional intent "may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment." Id. (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979)). In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), the United States Supreme Court identified factors as guides to discerning Congressional intent:

(1) whether the plaintiff is one of the class for whose "`especial'" benefit the statute was enacted, "that is, does the statute create a federal right in favor of the plaintiff"; (2) whether there is "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one"; (3) whether it is "consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff'; and (4) 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."

Chan v. City of New York, 1 F.3d 96, 102 (2d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 472, 126 L.Ed.2d 423 (1993) (quoting Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088).

Examining these Cort factors as applied in this case, the Court concludes Glendora has an implied federal cause of action under Section 531(e) of the Cable Act. First, as a public user of cable channels, Glendora is among the "class for whose especial benefit" the statute was enacted. Section 531(e) prohibits a cable operator from exercising "any editorial control over any public, educational, or governmental use of channel capacity." 47 U.S.C. § 531(e). By its very terms, the beneficiaries of this provision are producers and viewers of public, educational, and governmental programs. Glendora therefore falls within the class for whose benefit Section 531(e) was enacted.

The language and structure of the statute also support the conclusion that Congress intended an implied cause of action here. The Cable Act fails to provide any express remedy for cable operator violations of Section 531(e). The enforcement provision of Section 531(c) applies only to franchising requirements:

A franchising authority⁵ 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). Section 531(e) may be considered a "franchise requirement" when a specific franchise agreement explicitly incorporates federal law. However, when a franchise agreement fails to incorporate the provision, no expressly designated mechanism under federal law exists to enforce Section 531(e). Interpreting Section 531(c), which speaks in permissive terms and does not apply when an agreement fails to incorporate federal requirements, as the only method under federal law of enforcing Section 531(e) contradicts the mandatory terms of this provision, providing that a cable operator "shall not exercise any editorial control" except with regard to obscenity matters.

The fact that Congress explicitly conferred a private right of action in other provisions of the Cable Act is not determinative of whether an implied right exists here. See Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n. 23, 103 S.Ct. 683, 690 n. 23, 74 L.Ed.2d 548 (rejecting maxim of statutory construction expressio unius est exclusio alterius in context of securities laws). This Court shares the concern implicit in the decision of the Court of Appeals in this case; it 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.

In a provision similar to Section 531(e), the Cable Act provides, in relation to leased access programming, that "a...