Opinion
December 24, 1998
Appeals from the Supreme Court (Torraca, J.).
We affirm Supreme Court's determination that a plaintiff who is defamed by materials broadcast over a public access cable television channel cannot obtain monetary damages from the franchising authority.
Franchising authorities are governmental entities empowered to grant cable television franchises ( 47 U.S.C. § 522 [9]).
In 1984, Congress enacted the Cable Communications Policy Act of 1984 (98 US Stat 2779) which, inter alia, authorized franchising authorities to require cable operators to set aside channels for public educational and governmental programming, which channels were intended to be the electronic equivalent of Hyde Park ( see, Daniels Cablevision v. United States, 835 F. Supp. 1, 6, affd in part 93 F.3d 957). Commonly, the franchising authority retains a degree of control over these channels through nonprofit organizations or supervising boards that can set programming policy and approve or disapprove particular programming services ( see, Denver Area Educ. Telecom. Consortium v. Federal Communications Commn., 518 U.S. 727, 759-761).
Congress revisited this field in 1992 when it enacted the Cable Television Consumer Protection and Competition Act of 1992 (106 US Stat 1460). Among the concerns that spawned this legislation were the franchising authorities' potential exposure to monetary damages arising from decisions approving or disapproving a franchise or from determinations implicating the 1st Amendment (Cable Television Consumer Protection and Competition Act of 1992, HR Conf Rep No. 862, 102d Cong, 2d Sess). Congress addressed these concerns by enacting 47 U.S.C. § 555a (a), which reads as follows: "In any court proceeding * * * involving any claim against a franchising authority or other governmental entity * * * arising from the regulation of cable service or from a decision of approval or disapproval with respect to a grant, renewal, transfer or amendment of a franchise, any relief * * * shall be limited to injunctive and declaratory relief."
This statutory protocol found expression in the franchising agreement defendant Town of Woodstock entered into with Kingston Cablevision, Inc. (hereinafter Kingston). In return for the franchise, Kingston agreed to provide public access capability to the Town which formed a volunteer committee, defendant Woodstock Public Access Committee (hereinafter WPAC), to operate the station and promulgate rules and regulations governing its operation. According to plaintiffs' complaint, defendant Ronald Rybacki used his weekly program to promote "a vicious campaign of harassment * * * against plaintiffs by making derogatory, inflammatory, obscene and defamatory remarks". Plaintiff Elizabeth Caprotti avers that she implored the Town and WPAC to enforce their regulations and remove Rybacki from the public access channel. Purportedly, because they refused to do so, plaintiffs commenced this action seeking, inter alia, compensatory and punitive damages. As indicated, Supreme Court dismissed it on the ground that it was barred by 47 U.S.C. § 555a.
Plaintiffs have obtained a default judgment against this defendant.
Plaintiffs contend that Supreme Court misconstrued 47 U.S.C. § 555a, arguing that its only purpose is to protect franchising authorities from damage suits by aggrieved cable operators arising from franchise decisions. We construe the statute more broadly. In our view, the statute not only applies to franchising decisions but, because of its use of the disjunctive word "or", also to claims emanating from determinations relating to the regulation of cable services. We find support for our view in Coplin v. Fairfield Pub. Access Tel. Comm. ( 111 F.3d 1395), wherein the US Court of Appeals noted that franchising decisions were not the only concern Congress addressed in enacting 47 U.S.C. § 555a ( id., at 1408, n 7). It then proceeded to preclude a suspended talk show producer from seeking monetary damages against the franchising authorities, reasoning that his claim arose from the regulation of cable services ( id., at 1408). Also, as noted in McClellan v. Cablevision of Conn. ( 149 F.3d 161, 168, n 15), the statute limits a private cause of action to injunctive or declaratory judgment relief.
Likewise, plaintiffs' claim arises from the regulation of cable services as it is predicated upon the Town and WPAC's alleged failure to comply with the applicable rules and regulations governing the station's operation. Although plaintiffs' 1st Amendment rights were not abridged by defendants, the statute nonetheless should be applicable to them since the ability of a public access channel to provide a forum for robust and unrestrained public discourse would be jeopardized if viewers allegedly damaged by such programming could seek monetary damages from franchising authorities. In any event, we note that 47 U.S.C. § 555a applies to "any claim". Accordingly, we conclude that plaintiffs may not seek monetary damages from the Town or WPAC.
Finally, as we find that plaintiff's motion for reconsideration was in reality a motion for reargument, the denial of which cannot be appealed ( see, Spa Realty Assocs. v. Spring Assocs., 213 A.D.2d 781, 783), plaintiff's appeal of Supreme Court's order entered June 11, 1997 must be dismissed.
Cardona, P.J., Mercure, Spain and Graffeo, JJ., concur.
Ordered that the order entered May 14, 1997 is affirmed, without costs. Ordered that the appeal from order entered June 11, 1997 is dismissed, without costs.