Massad v. Eastern Connecticut Cable Television, Inc., (AC 21726)

• Decision Date: 02 July 2002
• Docket Number: (AC 21726)
• Citation: 801 A.2d 813,70 Conn. App. 635
• Court: Connecticut Court of Appeals
• Parties: STEPHEN L. MASSAD v. EASTERN CONNECTICUT CABLE TELEVISION, INC.

70 Conn. App. 635

801 A.2d 813

STEPHEN L. MASSAD v. EASTERN CONNECTICUT CABLE TELEVISION, INC.

(AC 21726)

Appellate Court of Connecticut.

Argued March 27, 2002.

Officially released July 2, 2002.

Lavery, C. J., and Mihalakos and Bishop, Js.

Steven M. Laput, for the appellant (plaintiff).

Timothy S. Jajliardo, with whom, on the brief, was Peter J. Ponziani, for the appellee (defendant).

Opinion

LAVERY, C. J.

In reviewing this appeal from the trial court's rendering of summary judgment in the defendant's favor, we address to what extent federal law shields cable operators from liability for slanderous comments made by individuals on public access cable television shows. The plaintiff, Stephen L. Massad, brought a three count complaint grounded in common-law tort against the defendant, Eastern Connecticut Cable Television, Inc. The complaint alleged that by not prohibiting a telephone caller on consecutive live broadcasts of a public access show from making slanderous statements about the plaintiff, the defendant was liable under the theories of negligence, recklessness and slander per se. The court granted the defendant's motion for summary judgment, concluding that the action was barred by the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. We affirm the judgment of the trial court.

Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. Although a negligence claim generally is ill suited to summary adjudication; see Henriques v. Magnavice, 59 Conn. App. 333, 335-36 n.2, 757 A.2d 627 (2000); there is an exception to the general rule where the defendant enjoys immunity. See Ascuitto v. Farricielli, 244 Conn. 692, 711, 711 A.2d 708 (1998) (affirming grant of summary judgment on negligence claim where parental immunity applied). In determining a motion for summary judgment, the court may rely on "affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45.

That evidence reveals the following. The plaintiff owns an insurance business in the New London area. On consecutive weeks in March, 1999, a call-in program, "Views from the Edge of the Field," was broadcast live over the public access channel provided by the defendant that serves the greater New London area. On both occasions, the shows broadcasted comments from anonymous callers who made statements about the plaintiff that he alleged constituted slander per se, although he also alleged that he suffered actual damages.

"On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Citation omitted; internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 672, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002).

The plaintiff has two bases for his appeal. First, he argues that the court misapplied the standard for deciding a summary judgment motion and improperly found facts. Second, he argues that the court misapplied federal law in concluding that the defendant was immune from suit. We disagree with both contentions.

I

The plaintiff first argues that the court improperly assumed the role of fact finder and then concluded that there were no issues of material fact. Specifically, he cites three findings that he argues should have been determined by a jury: That the defendant was solely a cable operator rather than a cable programmer; that the defendant took a more active role in producing the show than simply "carrying" it; and that the defendant provided more than technical assistance. We conclude that the court properly interpreted the relevant statutes.

"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).

Despite the plaintiffs protestations, we agree with the court's observation that the "parties do not so much appear to differ on the facts," but on the application of the law to those facts. The defendant sought summary judgment largely based on the deposition of Mary Jane Rickard, the defendant's public access coordinator. Rather than introduce contrary evidence through depositions or affidavits; see Practice Book § 17-45; the plaintiff argued that Rickard's deposition showed that the defendant was intimately involved with the production of the show and was, therefore, liable. The court agreed with the defendant's contrary assertion. "The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation.... Statutory interpretation presents a question of law for the court." (Internal quotation marks omitted.) Biller Associates v. Rte. 156 Realty Co., 52 Conn. App. 18, 26, 725 A.2d 398 (1999), aff d, 252 Conn. 400, 746 A.2d 785 (2000). The court, therefore, had the power to interpret the statutory and regulatory language in light of the undisputed facts before it, and we conclude that it did not make improper factual findings.

Despite framing the issue as one where the court improperly found facts, the plaintiff in effect challenges the court's conclusions of law on those issues. The disposition of all of those claims turns on whether the defendant exercised editorial control over the broadcasts or merely provided technical assistance. The court properly concluded that the defendant provided technical assistance.

Our agreement with the court is based on our interpretation of the relevant state and federal statutes. In doing so, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... Furthermore, it is an elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts.... When statutes relate to the same subject matter, they must be read together and specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." (Citations omitted; internal quotation marks omitted.) Coregis Ins. Co. v. Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d 254 (2002).

Section 558 of title 47 of the United States Code provides in relevant part: "Nothing in [47 U.S.C. § 521 et seq.] shall be deemed to affect the criminal or civil liability of cable programmers or cable operators pursuant to the Federal, State, or local law of libel, slander... or other similar laws, except that cable operators shall not incur any such liability for any program carried on any channel designated for public, educational, governmental use ... or under similar arrangements unless the program involves obscene material." (Emphasis added.) The plaintiff argues that although the defendant is a cable operator, "its extensive participation in the production, editing, preparation and broadcast of the public access shows" meant that it also served as a programmer. Because 47 U.S.C. § 558 does not exempt cable programmers of public access shows from liability, the plaintiff argues that the court improperly concluded that the defendant was immune from suit.

The defendant urges us to decline to review the operator-programmer distinction, arguing that the plaintiff did not raise it before the trial court. Practice Book § 5-2 requires that "[a]ny party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question...." In the past, we have considered claims that were "perhaps less than clear when raised on the record," so long as they were distinctly raised in the posttrial brief. Biller Associates v. Rte. 156 Realty Co., supra, 52 Conn. App. 24. Our review of the transcript of the hearings on the summary judgment motion¹ and the plaintiff's memorandum of law in opposition to that motion² leads us to conclude that the plaintiff adequately raised the claim that 47 U.S.C. § 558 did not shield the defendant from liability. That also was recognized by the trial court, which stated in its memorandum of decision that "[a]ccording to the plaintiff, [the defendant's] employees went far beyond the required level of support and participated in the actual preparation, production, editing and broadcasting of the public access show in question," and that the plaintiff distinguished 47 U.S.C. § 558 by ...