Playboy Enterprises v. PUBLIC SERV. COM'N OF PR, Civ. No. 87-0611 (JP).

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Writing for the CourtPIERAS
Citation698 F. Supp. 401
PartiesPLAYBOY ENTERPRISES, INC., and Puerto Rico Cable Television Association, on its own behalf and on behalf of its members, Plaintiffs, v. PUBLIC SERVICE COMMISSION OF PUERTO RICO; Angel Almodovar Correa; Ruben Villalba Olivo; Jose Cima de Villa; Maria Cancel Alegria; Ruben Rivera Garcia; Hon. Hector Rivera Cruz, Secretary of Justice of Puerto Rico, and Angel E. Rosa Rosa, Defendants.
Decision Date31 October 1988
Docket NumberCiv. No. 87-0611 (JP).

698 F. Supp. 401

PLAYBOY ENTERPRISES, INC., and Puerto Rico Cable Television Association, on its own behalf and on behalf of its members, Plaintiffs,
v.
PUBLIC SERVICE COMMISSION OF PUERTO RICO; Angel Almodovar Correa; Ruben Villalba Olivo; Jose Cima de Villa; Maria Cancel Alegria; Ruben Rivera Garcia; Hon. Hector Rivera Cruz, Secretary of Justice of Puerto Rico, and Angel E. Rosa Rosa, Defendants.

Civ. No. 87-0611 (JP).

United States District Court, D. Puerto Rico.

October 31, 1988.


698 F. Supp. 402

David W. Ogden, Donald B. Verrilli, Jr., Bruce J. Ennis, Ennis Friedman & Bersoff, Washington, D.C., Howard Shapiro, Burton Joseph, Playboy Enterprises, Inc., Chicago, Ill., Maria Emilia Picó, Erick G. Negrón, Rexach & Pico, Hato Rey, P.R., for Puerto Rico Cable Television Ass'n, Playboy Enterprises, Inc. and Playboy Programming Distribution Co. of America.

Carlos Del Valle, Ramirez & Ramirez, Hato Rey, P.R., for Public Service Com'n of the Commonwealth of P.R., Angel Almodovar Correa, Ruben Villalba Olivo, Jose Cima De Villa, Maria Cancel Alegria, Ruben Rivera Garcia and Hector Rivera Cruz.

Bruce A. Taylor, Scottsdale, Ariz., José A. Andreu García, Andreu Garcia & Andreu Garcia, Hato Rey, P.R., for Angel E. Rosa Rosa.

OPINION AND ORDER

PIERAS, District Judge.

On September 30, 1986, the Legislature of Puerto Rico passed Act Number 3 of the Seventh Special Session of the Tenth Legislature of the Commonwealth of Puerto Rico. Act No. 3 amended the Penal Code of Puerto Rico by extending coverage of the definitions of "obscene material" and "distribution of obscene material" to include depictions and transmissions via cable television. Transmission of obscene material was made punishable by up to four years' imprisonment, and a $50,000.00 fine, depending on whether there were repeated violations and aggravating circumstances.

Subsequent to the passage of Act No. 3, the Commission issued "Agreement Number 2," in which the Commission adopted, on the administrative level, the prohibitions enacted by the Legislature. The Commission, having franchising authority over cable

698 F. Supp. 403
television operators in Puerto Rico, set forth the possible sanctions for violation of the anti-obscenity statute. These sanctions were suspension or revocation of the franchise license and fines

In late March, 1987, a prosecutor of the Department of Justice of the Commonwealth of Puerto Rico, defendant Rosa, contacted individual cable operators around Puerto Rico to inform them that he was preparing to file criminal complaints against them and their companies alleging transmission of obscene material over their respective cable systems. In the face of impending criminal obscenity charges, several cable operators terminated their contracts with the appropriate subsidiary of PEI and discontinued carriage of The Playboy Channel. This lawsuit followed.

Plaintiffs in this case are Playboy Enterprises, Inc. (PEI), the Playboy Programming Distribution Corporation (PPDC), and the Puerto Rico Cable Television Association (PRCTA). Defendants are the individual members of the Public Service Commission (PSC) of Puerto Rico in their official capacities, the Secretary of Justice of Puerto Rico, and a prosecutor from the Justice Department, Angel Rosa Rosa. The suit seeks relief against the Commission and the Justice Department to declare Act No. 3 unconstitutional, to enjoin criminal prosecution under the statute, and to enjoin the Commission from suspending or revoking the franchise of any cable operator both on constitutional grounds and on the grounds that local criminal prosecution of cable operators is preempted by the Cable Communications Policy Act (CCPA) of 1984, 47 U.S.C. §§ 521-559. The suit also seeks damages related to the claim that certain cable operators and PEI as well as PPDC suffered losses after discontinuing carriage of the Playboy Channel in the face of the prosecutor's threats of criminal prosecution. By agreement of the parties and with the consent of the Court, these legal claims have been held in abeyance during the pendency of the equitable claims.

I. VIABILITY OF SUIT UNDER 42 U.S.C. § 1983

Plaintiffs claim that this Court has jurisdiction under the civil rights statute, 42 U.S.C. § 1983, to determine whether the Cable Communications Policy Act of 1984 preempts local obscenity prosecution of members of plaintiff PRTCA for cablecast of The Playboy Channel. Defendants have raised several jurisdictional and standing issues that must be resolved before proceeding to the merits of the case. Defendants argue first that as a result of a consent decree in this action, no case or controversy exists that would enable this Court to exercise its power under Article III of the United States Constitution. In the alternative, defendants argue that the Cable Communications Policy Act of 1984 provides no implied cause of action or substantial right that 42 U.S.C. § 1983 would protect. The Court finds both of these arguments unconvincing.

A. Mootness

The Court entered a consent decree in this case which was intended to be interim protection until the case was decided on its merits. Part of that consent decree was a permanent injunction that defendants were enjoined from

a) Revoking or suspending, or threatening to revoke or suspend, the franchise licenses of cable operator members of coplaintiff Puerto Rico Cable Television Association, or imposing, or threatening to impose, any other administrative sanctions based upon any video programming carried on The Playboy Channel; provided, that nothing in this paragraph shall be construed to enjoin the Public Service Commission or the Public Service Commissioners from enacting, implementing, and enforcing regulations promulgated after the date of this Order concerning the transmission on cable television systems of video programming, not excluding The Playboy Channel, that is obscene or otherwise unprotected by the Constitution, so long as those regulations and any action taken pursuant to those regulations are permitted by the Constitution of the United States and applicable law; and it is further provided that said regulations will not be enforced against members of coplaintiff Puerto Rico Cable
698 F. Supp. 404
Television Association or their agents, employees, or representatives, for a period of thirty (30) days following formal adoption and notification to all affected parties, and that plaintiffs may during that thirty (30) day period or thereafter seek declaratory or injunctive relief within the proceedings before this Court, or otherwise, respecting the validity and enforceability of said regulations;
b) Threatening to indict or otherwise threatening to initiate prosecutions against cable operator members of coplaintiff Puerto Rico Cable Television Association, or any of their agents, employees, and representatives, based upon any video programming carried on The Playboy Channel; or indicting or otherwise initiating prosecutions, or taking any administrative or civil actions against plaintiffs or any cable operator members of coplaintiff Puerto Rico Cable Television Association or their agents, representatives or employees, in whole or in part in reprisal or as a penalty for the exercise of First Amendment rights, including the right to file the instant lawsuit or to transmit constitutionally protected material; provided that the foregoing clause shall not be interpreted to prohibit the Secretary of Justice from instituting any criminal prosecution against plaintiff Playboy Programming Distribution Company, Inc., for programming distributed on The Playboy Channel in Puerto Rico after the date of this Order that the Secretary of Justice believes in good faith is in fact obscene, so long as such prosecution is not brought in reprisal or as a penalty for the exercise of constitutionally protected rights;
c) Indicting or initiating any prosecution of or taking any administrative or civil action against cable operator members of coplaintiff Puerto Rico Cable Television Association or any other person or entity for any video programming on The Playboy Channel carried prior to the date of this Order; and
d) Otherwise intentionally interfering with any video programming carried on The Playboy Channel by cable operator members of coplaintiff Puerto Rico Cable Television Association by intimidation of or putting coercive pressure upon said operators.

Defendants now argue that, as a result of the permanent injunction portion of the consent decree, the controversy is moot. There is no real and immediate injury to be enjoined because, defendants contend, the only possible injury, threatened prosecution, has already been permanently enjoined.

Defendants rely primarily on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Respondent in that case sought to enjoin the future use by the Los Angeles Police Department (LAPD) of a "chokehold" during arrests. The respondent charged that the chokehold had resulted in injury to himself and death to some. Lyons, as part of the complaint, sought injunctive relief. The United States Supreme Court held that "Lyons had failed to demonstrate a case or controversy ... that would justify the equitable relief sought." 461 U.S. at 105, 103 S.Ct. at 1667 (footnote omitted). The Court continued:

In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.

Id. at 105-106, 103 S.Ct. at 1667. The Supreme Court thereby emphasized the difficulty of regulating future conduct that may not come to pass.

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7 practice notes
  • Playboy Enterprises, Inc. v. Public Service Com'n of Puerto Rico, No. 89-1026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 12, 1989
    ...judgment and injunction entered by the district court. We borrow considerably from Judge Pieras' thorough opinion, published at 698 F.Supp. 401 (D. Puerto Rico I. Introduction These facts are undisputed: Cable operating companies, after securing monopoly franchises from local authorities, p......
  • Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 19-13604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 31, 2021
    ...aff'd, 868 F.3d 104 (2d Cir. 2017), and aff'd, 705 F. App'x 10 (2d Cir. 2017) ; Playboy Enters., Inc. v. Pub. Serv. Comm'n of P.R., 698 F. Supp. 401, 413–14 (D.P.R. 1988) (similar analysis regarding the unincorporated Puerto Rico Cable Television association), aff'd as modified on other gro......
  • Santiago Collazo v. Franqui Acosta, Civ. No. 89-363 (JP).
    • United States
    • U.S. District Court — District of Puerto Rico
    • August 28, 1989
    ...injury must be of the kind "likely to be redressed by a favorable decision." Id. See Playboy Enterprises, Inc., v. Public Serv. Comm'n, 698 F.Supp. 401, 414-15 (D.P.R.1988). At least three additional requirements for standing, while not constitutionally based, have been imposed by the Supre......
  • Daggs v. Bass, Civil Action No. 11-30070-FDS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 20, 2012
    ...programs on PEG channels. See, e.g., Community Television at 1103; see also Playboy Enter., Inc. v. Public Serv. Com'n of Puerto Rico, 698 F. Supp. 401, 403 (D.P.R. 1988). There is no genuine dispute that Comcast is a cable operator. Cable operators are defined under the Cable Act as entiti......
  • Request a trial to view additional results
7 cases
  • Playboy Enterprises, Inc. v. Public Service Com'n of Puerto Rico, No. 89-1026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 12, 1989
    ...judgment and injunction entered by the district court. We borrow considerably from Judge Pieras' thorough opinion, published at 698 F.Supp. 401 (D. Puerto Rico I. Introduction These facts are undisputed: Cable operating companies, after securing monopoly franchises from local authorities, p......
  • Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 19-13604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 31, 2021
    ...aff'd, 868 F.3d 104 (2d Cir. 2017), and aff'd, 705 F. App'x 10 (2d Cir. 2017) ; Playboy Enters., Inc. v. Pub. Serv. Comm'n of P.R., 698 F. Supp. 401, 413–14 (D.P.R. 1988) (similar analysis regarding the unincorporated Puerto Rico Cable Television association), aff'd as modified on other gro......
  • Santiago Collazo v. Franqui Acosta, Civ. No. 89-363 (JP).
    • United States
    • U.S. District Court — District of Puerto Rico
    • August 28, 1989
    ...injury must be of the kind "likely to be redressed by a favorable decision." Id. See Playboy Enterprises, Inc., v. Public Serv. Comm'n, 698 F.Supp. 401, 414-15 (D.P.R.1988). At least three additional requirements for standing, while not constitutionally based, have been imposed by the Supre......
  • Daggs v. Bass, Civil Action No. 11-30070-FDS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 20, 2012
    ...programs on PEG channels. See, e.g., Community Television at 1103; see also Playboy Enter., Inc. v. Public Serv. Com'n of Puerto Rico, 698 F. Supp. 401, 403 (D.P.R. 1988). There is no genuine dispute that Comcast is a cable operator. Cable operators are defined under the Cable Act as entiti......
  • Request a trial to view additional results

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