Opinion
DOCKET NO. A-3754-15T1
04-13-2017
IN THE MATTER OF THE PETITION OF TIME WARNER CABLE, INC., CHARTER COMMUNICATIONS, INC. AND TIME WARNER CABLE NEW YORK CITY LLC, FOR APPROVAL OF THE TRANSFER OF CONTROL OF TIME WARNER CABLE NEW YORK CITY, LLC AND APPROVAL OF TRANSACTION FINANCING. IN THE MATTER OF THE VERIFIED PETITION OF CHARTER COMMUNICATIONS, INC. AND TIME WARNER CABLE, INC., FOR APPROVAL OF THE TRANSFER OF CONTROL OF TIME WARNER CABLE INFORMATION SERVICES (NEW JERSEY), LLC AND APPROVAL OF TRANSACTION FINANCING.
Hill Wallack, LLP, attorneys for appellants National Association of African American-Owned Media and Entertainment Studios Networks, Inc. (Rocky L. Peterson, of counsel and on the brief). Scarinci & Hollenbeck, LLC, attorneys for respondents Charter Communications, Inc., Time Warner Cable Inc., Time Warner Cable New York City LLC and Time Warner Cable Information Services (New Jersey), LLC (Robert E. Levy, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Board of Public Utilities (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alex Moreau, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Vernoia. On appeal from the Board of Public Utilities, Docket Nos. CM15070770 and TM15070772. Hill Wallack, LLP, attorneys for appellants National Association of African American-Owned Media and Entertainment Studios Networks, Inc. (Rocky L. Peterson, of counsel and on the brief). Scarinci & Hollenbeck, LLC, attorneys for respondents Charter Communications, Inc., Time Warner Cable Inc., Time Warner Cable New York City LLC and Time Warner Cable Information Services (New Jersey), LLC (Robert E. Levy, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Board of Public Utilities (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Alex Moreau, Deputy Attorney General, on the brief). PER CURIAM
Appellants seek our review of a final agency decision to which they were not a party and as to which they did not comment upon or complain until after the agency voted to approve the merger in question. Because the procedural events govern our decision to affirm, we describe those events in some detail.
This appeal relates to the Board of Public Utilities' approval of a merger between Charter Communications, Inc., and Time Warner Cable, Inc. This merger was part of a national telecommunications merger in which Charter, Time Warner, and Bright House Networks LLP, participated; that transaction had previously been reviewed and approved by the Federal Communications Commission and the United States Department of Justice.
The record reveals that two verified petitions were filed with the Board on July 7, 2015. The first - filed by Charter, Time Warner, and Time Warner Cable New York City, Inc. (TWCNYC) - sought approval of Charter's acquisition of TWCNYC. The second - filed by Charter, Time Warner, and Time Warner Cable Information Services (New Jersey), LLC (TWCIS) - sought approval of the proposed transfer of control of TWCIS to a Charter subsidiary. Both petitions sought the Board's approval of financing arrangements related to the proposed transfers. After considerable discovery and negotiations between the parties and the New Jersey Division of Rate Counsel, a settlement was reached and presented to the Board by way of a stipulation of settlement.
Notice was given to the public. No comments were filed. At its February 24, 2016 meeting, the Board voted unanimously to approve the merger pursuant to the stipulation of settlement.
Ten days later, on March 3, 2016, appellant National Association of African American-Owned Media and appellant Entertainment Studios Networks, Inc. sent a letter addressed to the Board and to the utilities boards in California and Hawaii. The latter appellant described itself as "a multi-channel/programming production company in the television/media business[,] [which] is the only one hundred percent African-American owned media company of its kind in the United States"; it also asserted its membership in appellant National Association of African American-Owned Media, which was described as "an African-American media advocacy organization." Appellants' March 3, 2016 letter asserted that Charter had engaged in discriminatory practices and complained that the merger would further foster those unlawful practices. The letter, however, importuned only the anticipated actions of the boards in California and Hawaii, and recognized that the Board here had already acted. Indeed, the letter asked for no relief from the Board regarding the matters before it or the decision it made ten days earlier in concluding the merger was in the public interest.
For example, the last three sentences of the letter state: "As fiduciaries for millions of affected Californians and Hawaiians, we ask that you review the facts and take leadership action to force Charter to eradicate the discrimination detailed in our lawsuit [which charged the Federal Communications Commission and Charter with having engaged in long-term racial discrimination]. The discrimination is getting worse, not better. Please do not sanction the growth of institutionalized racism in California and Hawaii by allowing Charter to continue its course of economic genocide against African American owned media!" (original emphasis deleted; other emphasis added).
On April 27, 2016, nearly a month after the Board executed its final agency decision approving the merger, appellants wrote to Rate Counsel, advising of their California lawsuit, which alleged Charter had engaged in racial discrimination "in contracting against 100% African American-owned media in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981." Appellants also asserted that the Board failed "to prevent this institutionalized discrimination," and advised that they had "already filed a lawsuit against the FCC in federal court for the same dereliction of duty." Appellants asked Rate Counsel to stay the Board's order and "schedule a hearing immediately."
A week later, appellants wrote to the Board to advise they had not heard from Rate Counsel. They requested a stay of the merger order and advised that they had simultaneously applied to this court for emergent handling of a motion for a stay. In seeking a stay from the Board, appellants argued in their May 4, 2016 letter that, if given a hearing, they would be able to establish the merger would be detrimental to 100% African American-owned media companies.
We denied that application because appellants had not yet obtained a ruling from the Board on their application for a stay.
On May 6, 2016, appellants filed a notice of appeal of the March 31, 2016 final agency decision.
The merger participants opposed the motion for a stay for a host of reasons. They asserted: (1) appellants lacked standing since they were neither parties to nor intervenors in the proceedings; (2) appellants had unreasonably delayed in seeking relief; (3) Charter possessed First Amendment rights on which channels to carry; (4) the Board lacked jurisdiction to regulate the channels Charter might carry, citing 47 U.S.C. § 544 ; (5) any relief of the nature sought by appellants should be pursued in their pending federal action and not in the Board; (6) the decision not to carry channels is not evidence of racial discrimination since such a decision could be based on a myriad of legitimate reasons; and (7) a stay would delay the merger and consequently unsettle, among other things, the expectations of marketplace investors and participants.
"Any Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in this title." 47 U.S.C. § 544(f)(1).
On June 29, 2016, after analyzing the factors enunciated by the Supreme Court in Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982), the Board denied appellants' application for a stay. The Board was particularly persuaded by appellants' failure to bring their concerns to the Board during the eight months in which the matter was pending.
Appellants did not thereafter seek a stay in this court, nor did they file an amended notice of appeal seeking reversal of the Board's June 29, 2016 decision. The record reveals that the merger participants have since consummated the transaction approved by the Board through the final agency decision in question.
Notwithstanding the fact that the appeal identified only the March 31, 2016 final agency decision as that which appellants would have us review - as is further demonstrated by the single point of their appeal brief, which complains, with regard to the March 31, 2016 decision, that "the failure of the Board of Public Utilities to perform their constitutionally required duties has perpetuated Charter's racism and violation of New Jersey's Law Against Discrimination" - appellants also assert at their brief's conclusion that we should "reverse the Board['s] decision denying a stay of the implementation of the merger . . . so that [appellants have] an opportunity to present [their] concerns . . . in the form of a public hearing." Although we are only obligated to consider the March 31, 2016 order identified in the notice of appeal, see, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.) (orders not designated in the notice of appeal are not subject to review), aff'd o.b., 138 N.J. 41 (1994), in the public interest we will not only consider the arguments appellants pose with regard to the March 31, 2016 order, but also their argument, asserted only at the conclusion of appellants' brief, but see Almog v. Israel Travel Advisory Serv., Inc., 293 N.J. Super. 145, 155 (App. Div. 1979) (only arguments appearing under "appropriate point headings" are considered), appeal dismissed, 152 N.J. 361, cert. denied, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998), that the Board's June 29, 2016 order denying a stay was erroneous.
While their initial brief contained only the single point we quoted above, appellants' reply sets forth eight points in which they argue: (1) "The BPU has statutory authority to address claims of discrimination in its regulation of cable television"; (2) "The BPU's failure to address appellants' complaint of discrimination violates appellants' right to equal protection of the laws under the United States and New Jersey Constitutions"; (3) "By regulating utility and cable television services, the BPU meets the definition of a 'place of public accommodation' under the NJ-LAD and is thus obligated to prevent race-based discrimination"; (4) "The New Jersey Constitution and state public policy prohibitions on discrimination favor a finding that the BPU was obligated to address allegations of race-based discrimination"; (5) additional arguments under a heading identical to that set forth in (4); (6) "Appellants meet all required factors for 'extraordinary' injunctive relief"; (7) "Appellants' claims are not time-barred under the doctrine of laches"; and (8) "Appellant[s'] claims are not moot because they appealed the BPU's merger order only." Except to the extent any of these arguments are subsumed within the argument posed in appellants' initial brief, we will not consider the new arguments contained in the reply brief. See, e.g., State v. Smith, 55 N.J. 478, 488 (finding improper the assertion of new issues in a reply brief), cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). --------
As for the latter, we need only say that the Board acted well within its discretion in denying appellants' motion for a stay. The Board fully considered the factors outlined in Crowe. We affirm the June 29, 2016 order substantially for the reasons set forth in the Board's thoughtful and comprehensive written decision.
We also find insufficient merit in appellants' arguments regarding the March 31, 2016 final agency decision to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
Because appellants never asked to be heard during the public comment period and never complained about the merger until after it had been approved, appellants' only cognizable argument - assuming we were to hold they have standing to complain after failing to intervene prior to the final agency and assuming we were to hold their appeal is not moot even though the approved transaction has since been consummated - concerns not only whether the Board should have appreciated or anticipated the arguments and contentions appellants now assert, but also whether the Board should have unilaterally acted to address those unraised and unspoken concerns during their decision-making process. Appellants have referred us to no authority that would suggest an agency of the executive branch must - without any person or entity claiming or expressing such a concern - investigate and determine whether applicants such as these will, at some future point, violate federal or state laws that prohibit racial discrimination.
Courts "have only a limited role to play in reviewing the actions of other branches of government." Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995). After closely examining the record in light of the issues raised, we cannot conclude the agency's final decision was arbitrary, capricious or unreasonable. In re S. Jersey Gas Co., 447 N.J. Super. 459, 480 (App. Div. 2016). The authorities cited by appellants do not remotely suggest that an agency must investigate whether any of the parties before it had engaged or would in the future engage in discriminatory practices in the absence of such an assertion prior to the moment of decision. The cases cited by appellants are inapposite because in both those cases discriminatory conduct was actually alleged or was the basis for the proceedings before the particular agency whose decision was questioned on appeal, see In re Township of Warren, 132 N.J. 1, 7 (1993); Sellers v. Philip's Barber Shop, 46 N.J. 340, 343 (1966), and not asserted only after the agency decision was rendered. We further observe that there is nothing about the Board's actions that would foreclose the vindication of appellants' civil rights in any other appropriate forum. The Board cannot be faulted for its refusal to reopen the proceedings and consider issues never properly or timely raised.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION