Huntington TV Cable Corp. v. State of New York Com'n on Cable Television

• Decision Date: 05 May 1983
• Citation: 463 N.Y.S.2d 314,94 A.D.2d 816
• Parties: In the Matter of HUNTINGTON TV CABLE CORPORATION, Appellant, v. STATE OF NEW YORK COMMISSION ON CABLE TELEVISION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 314

463 N.Y.S.2d 314

94 A.D.2d 816

In the Matter of HUNTINGTON TV CABLE CORPORATION, Appellant, v. STATE OF NEW YORK COMMISSION ON CABLE TELEVISION et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 5, 1983.

Goldstein & Rubinton, Huntington (Arthur Goldstein, Huntington, of counsel), for appellant.

Robert Abrams, Atty. Gen. (Lawrence J. Logan, Asst. Atty. Gen., of counsel), for respondent State of N.Y. Comm'n on Cable Television.

Deirdre Maura Conforte, Huntington (Robert De Gregorio, Huntington, of counsel), for respondent Town of Huntington.

Joseph L. Carlino, Mineola, for respondent Cablevision Systems Huntington Corp.

Before MAHONEY, P.J., and MAIN, YESAWICH, WEISS and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered March 12, 1982 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to (1) annul an order of the State of New York Commission on Cable Television, dated March 25, 1981; (2) annul a resolution of the Town Board of the Town of Huntington, dated January 6, 1981; and (3) enjoin construction and other activity of Cablevision Systems Huntington Corporation commenced pursuant to the resolution of the Town Board of the Town of Huntington and the order of the State of New York Commission on Cable Television.

On December 29, 1967, respondent Town of Huntington (town) entered into a non-exclusive franchise agreement with petitioner Huntington TV Cable Corporation (Huntington TV) under the terms of which Huntington TV was permitted to operate a cable television system within the town. Under the agreement, Huntington TV was not required to furnish service to all areas of the town, but was to furnish service in the areas where utility lines were located on overhead poles. Thereafter, on December 22, 1976, toward the end that the service be competitive and that all of the citizens of the town be provided with service, the town entered into an amended franchise agreement with Cablevision Systems Huntington Corporation (Cablevision), the successor to Inter-County Television of Suffolk, Inc. This agreement amended and superseded the previously granted franchise to Inter-County Television of Suffolk, Inc., and was, after town board approval, submitted to the State of New York Commission on Cable Television (commission) as required by article 28 of the Executive Law and approved by the commission by order of March 3, 1978. A subsequent amendment, referred to as a "rider amendment", which was apparently intended to clarify or alter Cablevision's obligations under the agreement by providing new standards for newly designated geographic areas within the town, was disapproved by the commission on March 19, 1980, but with leave specifically granted for resubmission upon Cablevision's furnishing certain specified information including a technical description of the system and data concerning its financial ability, and the matter was remitted to the town board for possible further consideration. The town board thereafter caused to be published in The Long Islander, on July 10, 1980, a notice of a public hearing concerning the amendment to the franchise agreement to be held on July 29, 1980. The amendment was considered and discussed at this meeting and at, at least, two other public meetings that followed. Petitioner did not take part in any of these meetings, but by letter requested an opportunity to appear before the board at a scheduled meeting on November 12, 1980. Though it was provided with the opportunity to discuss the franchise amendment at this meeting, petitioner declined to do so for the stated reason that not all of the board members were present. Similarly, at the next meeting on November 25, 1980, petitioner declined to discuss the issue because the town's supervisor was not present and requested an adjournment. Finally, on December 16, 1980, presentations were made and discussions conducted with petitioner and Cablevision participating, and, on January 6, 1981, after hearing and rejecting petitioner's objections and relying on representations regarding the construction schedule, the town board duly adopted a resolution approving the franchise amendment. On or about January 29, 1981, Cablevision's attorney forwarded a letter confirming the representations regarding the construction schedule to the town supervisor who, with the town attorney, approved its content as evidenced by their communications to the commission accompanying the town's application for commission approval. The commission approved the application by order of March 25, 1981.

By order to show cause, petitioner commenced the instant proceeding on April 29, 1981, seeking a preliminary injunction and, inter alia, a judgment annulling the January 6, 1981 resolution of the town board and the commission's order of March 25, 1981. While this proceeding was pending, the town board scheduled a public hearing for November 10, 1981, and, thereat, adopted a resolution ratifying the January 6, 1981 resolution and the representations as set forth in the letters of Cablevision's attorney, the supervisor and the town attorney. Special Term dismissed the petition by judgment entered March 12, 1982 and this appeal ensued.

On appeal, petitioner argues (1) that the July 29, 1980 hearing was not preceded by reasonable notice; (2) that the town's resolution adopting the proposed amendment on January 6, 1981 was illegal and void for failure to comply with section 54-1 of the Code of the Town of Huntington; (3) that the commission's order of March 25, 1981 was null and void because the amendment was never the subject of a public hearing and was contrary to the January 6, 1981 resolution; and (4) that Special Term erred in applying the rational basis test. We will examine these assertions seriatim.

Before doing so, however, inquiry as to the purpose of article 28 of the Executive Law as well as the powers delegated to the commission is in order, and a highly instructive commentary thereon is succinctly provided in the opinion of Chief Judge Cooke in Matter of City of New York v. State of New York Comm. on Cable Tel., 47 N.Y.2d 89, 92, 416 N.Y.S.2d 786, 390 N.E.2d 293, wherein he states:

The Commission on Cable Television, created by the Legislature in 1972, is invested with broad authority to oversee the burgeoning cable television industry. Among its many powers, the agency is expressly authorized to "promulgate, issue, amend and rescind such orders, rules and regulations as it may find necessary or appropriate" to carry out the purposes of the cable television statute (Executive Law, § 816, subd. 1). In fact, no cable television franchise is effective unless it is confirmed by the commission, and "transfer, renewal or amendment of any franchise" may be accomplished without commission approval (Executive Law, §§ 821, 822). Approval of an amendment application may be made "contingent upon compliance with standards, terms or conditions set by the commission" (Executive Law, § 822, subd. 4). In addition to this enumerated authority, the agency "shall have and may exercise all other powers necessary or appropriate to carry out the purposes" of the enabling act (Executive Law, § 816, subd. 5).

We conclude that the July 29, 1980 public hearing was preceded by reasonable notice. The notice of that hearing was published in The Long Islander, a widely read newspaper, on July 10, 1980. While not in strict compliance with 9 NYCRR 592.13 and 594.8, it nevertheless adequately described the subject of the hearing and specifically named the amendment which was to be the subject of the hearing. In addition, the record reveals that the amendment was a subject which generated enormous interest among the townspeople and was widely covered by the media. The cases cited by petitioner in support of its claim that strict fulfillment of the notice requirements is absolutely necessary are either inapplicable or readily distinguishable. Those in the latter category involve departures from requirements far more serious than those at hand. To be applied here is the well-established time-honored rule that an agency's determination of its own rules is to be upheld unless it is...