Opinion
Civil Action No. 03-6231.
September 22, 2004
ORDER
AND NOW, this 22nd day of September, 2004, upon consideration of Defendant Tredyffrin Township's "Motion to Dismiss Plaintiff's Amended Complaint" (Docket No. 11), Defendant Comcast of Pennsylvania's "Motion to Dismiss Plaintiff's Amended Complaint" (Docket No. 12), and any response filed thereto, IT IS HEREBY ORDERED that the Motions are GRANTED and this case is DISMISSED in
Plaintiff, Christopher Egli, has brought this action for injunctive relief pursuant to 47 U.S.C. § 531(e) and 42 U.S.C. § 1983. Egli seeks an injunction requiring Defendants to cablecast his programming on Tredyffrin Township's ("Tredyffrin") public access cable channel. Comcast of Pennsylvania, LLC ("Comcast") is the cable operator for Tredyffrin. (Am. Compl. ¶ 6.) The Amended Complaint alleges the following facts. Elgi offers independently produced television programming for cablecast on Tredyffrin's public access cable channel. (Id. ¶ 11.) In June or July 2002, Comcast and Tredyffrin refused to cablecast a program offered by Egli because of objectionable content. (Id. ¶ 12.) On August 15, 2002, Comcast and Tredyffrin refused to lend video equipment to Egli and denied his use of editing facilities. (Id. ¶ 13.) On November 12, 2002, Comcast sent a letter to Egli, informing him that it would not allow him to be a producer at Comcast's Tredyffrin PA2 Public Access studio because he was not a resident of Tredyffrin Township and did not have a Tredyffrin Township resident as a sponsor. (Id. ¶ 14, Ex. A.) The Amended Complaint alleges three causes of action. The First Cause of Action is brought pursuant to 47 U.S.C. § 531(e) and alleges that Comcast illegally exercised editorial control over Egli's programming by refusing to air it. (Id. ¶¶ 1, 16.) The Second Cause of Action is brought against Tredyffrin pursuant to 42 U.S.C. § 1983 and alleges that Tredyffrin's actions violate Egli's First Amendment free speech rights. (Id. ¶¶ 1, 18.) The Third Cause of Action alleges that Comcast breached a contract with Egli to cablecast Egli's programming. (Id. ¶¶ 20-22.)
Comcast and Tredyffrin seek dismissal of the Causes of Action asserted against them pursuant to Federal Rule of Civil Procedure 12(b)(6). When determining a Motion to Dismiss pursuant to Rule 12(b)(6), the court may look only to the facts alleged in the complaint, exhibits attached to the complaint, and matters of public record. Pension Benefits Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). The court must accept as true all well pleaded allegations in the complaint and view them in the light most favorable to the Plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted when a Plaintiff cannot prove any set of facts, consistent with the complaint, which would entitle him or her to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
Comcast argues that the First Cause of Action should be dismissed because there is no private right of action pursuant to 47 U.S.C. § 531(e). Section 531(e) provides that "a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity." 47 U.S.C. § 531(e). "The primary source of a private right of action is the text of a statute." American Tel. and Tel. Co. v. M/V Cape Fear, 967 F.2d 864, 866 (3d Cir. 1992). The text of this section of the Cable Act does not provide an express private right of action. Accordingly, the Court turns to other indicators of Congressional intent to determine whether Plaintiff may assert a private action pursuant to this statute. To determine whether Congress intended to create a private right of action, courts use the four-factor test articulated by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1979). Hemispherx Biopharma, Inc. v. Asensio, No.Civ.A. 98-5204, 1999 WL 144109, at * 7 (E.D. Pa. Mar. 15, 1999). The four factors are:
(1) whether the plaintiff is a member of the class for whose special benefit the statute was enacted; (2) whether there is any explicit or implicit indication of congressional intent to create or deny a private remedy; (3) whether a private remedy would be consistent with the underlying purpose of the legislative scheme; and (4) whether the cause of action is one traditionally relegated to state law. Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 78 (1975)). Section 531(e) delineates prohibited actions of cable operators, it does not confer any rights on public access users. Leach v. Mediacom, 240 F. Supp. 2d 994, 997-98 (N.D. Iowa 2003). "Statutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'" Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)). Therefore, Egli is not a member of the class for whose special benefit § 531(e) was enacted and the first Cort factor does not support Plaintiff's right to bring a private action pursuant to this statute. As stated above, § 531(e) does not explicitly indicate Congressional intent to create a private remedy for public access users. Congress has, however, expressly provided some private rights of action to enforce some provisions of the Cable Act. See In re Comcast Corp. Cable TV Rate Regulation, No.Civ.A. 93-6628, 1994 WL 622105, at *5 (E.D. Pa. Nov. 10, 1994). While not conclusive, the fact that Congress has expressly designated other private rights "weighs against the implication of an additional private right." Id. Consequently, the second Cort factor does not support Plaintiff's right to bring a private action pursuant to this statute. The creation of an implied private action would not be consistent with the underlying purpose of the Cable Act, "because case-by-case `regulation' might disrupt the national regulatory scheme it created." Id. at *5. Accordingly, the third Cort factor does not support Egli's right to bring a private action pursuant to Section 531(e). Egli alleges that Comcast has violated federal law. Therefore, the cause of action is not one which is traditionally relegated to state law and the fourth Cort factor supports the existence of a private right of action. Having weighed all of the Cort factors, the Court concludes that Congress did not intend to create a private right of action for public access users to enforce violations of § 531(e). Accordingly, Comcast's Motion to Dismiss the First Cause of Action is granted.
Comcast argues that the Third Cause of Action should be dismissed because the Amended Complaint does not allege the existence of an enforceable contract between Comcast and Egli. The Amended Complaint alleges that "on or about June 1998 plaintiff entered into a contract with COMCAST wherein COMCAST agreed to cablecast programing proffered by the plaintiff for cablecast on the public access channel provided that plaintiff complies with all of the rules and procedures of the Township of Tredyffrin for the cablecast of programming on the public access channel." (Am. Compl. ¶ 20.) In determining whether there is an enforceable agreement between the parties, the Court looks at: "`(1) whether both parties manifested an intention to be bound by the agreement; (2) whether the terms of the agreement are sufficiently definite to be enforced; and (3) whether there was consideration.'" Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002) (quoting ATACS Corp. v. Trans World Communications, Inc., 155 F.3d 659, 666 (3d Cir. 1998)). Comcast maintains that the contract alleged in the Amended Complaint is not enforceable because it is not supported by consideration. "`Consideration confers a benefit upon the promisor or causes a detriment to the promisee and must be an act, forbearance or return promise bargained for and given in exchange for the original promise.'" Id. (quoting Channel Home Centers v. Grossman, 795 F.2d 291, 299 (3d Cir. 1986)). The Amended Complaint does not allege the existence of consideration given by Egli to Comcast in exchange for the opportunity to cablecast his programming; indeed, the Amended Complaint does not even allege that Egli promised to make any programming available to Comcast. Accordingly, Comcast's Motion to Dismiss the Third Cause of Action is granted.
Tredyffrin argues that Egli's Second Cause of Action should be dismissed because it does not state a claim pursuant to 42 U.S.C. § 1983. Section 1983 provides a remedy against "any person" who, under the color of the law, deprives another of his constitutional rights. 42 U.S.C. § 1983. In order to state a claim pursuant to Section 1983, a complaint must allege: (1) a deprivation of a federally protected right, and (2) commission of the deprivation by one acting under color of state law. Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997). The Amended Complaint alleges that Tredyffrin violated Egli's First Amendment right to free speech by violating 47 U.S.C. § 531(c). (See Am. Compl. at 10-12.) Section 531(c) provides that:
A franchising authority may enforce any requirement in any franchise regarding the providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for services, facilities, or equipment proposed by the cable operator which relate to public, educational, or governmental use of channel capacity, whether or not required by the franchising authority pursuant to subsection (b) of this section.47 U.S.C. § 531(c) (emphasis added). The Amended Complaint alleges that Tredyffrin was obligated by its franchise agreement, which provides for the existence of a public access cable channel, to prevent Comcast from removing Egli's programming from its public access channel and to order Comcast to cablecast Plaintiff's programming on Tredyffrin's public access channel. (Am. Compl. at 11-12.) The Amended Complaint further alleges that Tredyffrin's failure to enforce its franchise agreement by forcing Comcast to cablecast his programming constitutes a violation of Section 531(c). Section 531(c) does not, however, impose an affirmative duty on a franchising authority to enforce its franchise agreement to require a franchisor to cablecast programming from a specific cable access user. Consequently, the allegation that Tredyffrin failed to enforce its franchise agreement pursuant to Section 531(c) does not state a claim upon which relief may be granted pursuant to Section 1983.
As this action has been brought by a pro se litigant, the Court has also examined whether the Amended Complaint states a claim, pursuant to Section 1983, for violation of Egli's First Amendment rights in connection with Comcast's removal of his programming, without regard to any alleged violation of Section 531(c). The Amended Complaint does not allege that Tredyffrin itself took any action in connection with Comcast's decision to stop cablecasting programming produced by Plaintiff. The Amended Complaint also does not allege the existence of any policy or custom of Tredyffrin which allowed Comcast to violate Plaintiff's First Amendment rights. Accordingly, the Court finds that the Amended Complaint does not allege action taken under color of state law in violation of Egli's First Amendment right to free speech in connection with Comcast's decision to stop cablecasting Egli's programming and failure to reinstate Egli's programming.See Jersawitz v. People TV, 71 F. Supp. 2d 1330, 1339 (N.D. Ga. 1999) (finding that the City of Atlanta could not be held liable under Section 1983 for violating the First Amendment rights of a public access user who was barred from a public access television facility operated under a cable franchise agreement with Atlanta, where there was no evidence that the City, itself, "took any action in violation of Plaintiff's constitutional rights under the First Amendment or that it had a policy or custom that permitted People TV or any People TV employee to violate Plaintiff's First Amendment rights."). Accordingly, Tredyffrin's Motion to Dismiss Egli's Second Cause of Action is granted.
its entirety. The Clerk shall close this case statistically.