Amsat Cable Ltd. v. Cablevision of Connecticut Ltd. Partnership

6 F.3d 867, 1993 WL 347063
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 10, 1993
DocketNo. 1032, Docket 92-9162
StatusPublished
Cited by21 cases

This text of 6 F.3d 867 (Amsat Cable Ltd. v. Cablevision of Connecticut Ltd. Partnership) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amsat Cable Ltd. v. Cablevision of Connecticut Ltd. Partnership, 6 F.3d 867, 1993 WL 347063 (2d Cir. 1993).

Opinion

WALKER, Circuit Judge:

This case involves, inter alia, a constitutional challenge to the application of Connecticut’s mandatory cable access law, Conn. Gen.Stat. § 16-333a, a statute that guarantees franchised cable television companies access to apartment complexes currently exclusively serviced by satellite master antenna television (“SMATV”) companies on the request of complex residents.

BACKGROUND

Under the terms of § 16-333a, which is similar in certain respects to cable access statutes enacted in New York and other states, see, e.g., Ill.Rev.Stat. eh. 65 ILCS [870]*8705/11-42-11.1; N.J.S.A. § 48:5A-49; N.Y.Exec.L. § 828, an apartment complex owner may not deny its residents access to the services of community antenna television service providers. The statutory definition of community antenna television service providers includes, inter alia, franchised cable television broadcasters. See Conn.Gen.Stat. §§ 16-l(a)(14)-(15). Plaintiffs-appellants contend, and the other parties do not dispute, that § 16-333a does not grant SMATV companies the same right of access. Section 16-333a provides in relevant part:

(b) An owner of a multiunit residential building shall permit wiring to provide community antenna television service in such building provided that: (1) A tenant of such building requests community antenna television services; (2) the entire cost of such wiring is assumed by the community antenna television company; (3) the community antenna television company indemnifies and holds harmless the owner for any damages caused by such wiring; and (4) the community antenna television company complies with all rules and regulations of the department of public utility control pertaining to such wiring.

Section 16-333a also provides a procedure for compensating property owners whose property is taken as a result of cable installations. See id. at §§ 16-333a(e)-(h).

Plaintiffs-appellants are an SMATV company, AMSAT Cable Ltd., and an apartment complex owner, Stamford Apartments Co. Defendants-appellees are the holder of a cable television franchise in Connecticut, Ca-blevision of Connecticut Limited Partnership, various Connecticut state officials, and inter-venor Connecticut Office of Consumer Counsel.

AMSAT operates SMATV systems in a number of apartment complexes, including one owned by Stamford Apartments, known as Hoyt-Bedford. SMATV systems are composed of satellite reception dishes installed in private apartment complexes providing television services to residents via cable lines. Under an agreement between AMSAT and Stamford Apartments, AMSAT received an exclusive easement for the installation of an SMATV system in Hoyt-Bedford, and an exclusive right to provide cable television service to the residents thereof. In an administrative ruling (the “Summitwood ” decision), the Connecticut' Department of Public Utility Control (“DPUC”) declared the exclusivity provisions of a similar agreement between AMSAT and the owner of another apartment complex void and unenforceable pursuant to § 16-333a, after which point AMSAT discontinued its service to the complex. A state court appeal of the Summit-wood decision was dismissed as moot.

Plaintiffs contend that Cablevision has threatened to demand access to Hoyt-Bed-ford pursuant to the DPUC’s construction of § 16-333a. Plaintiffs brought suit in the United States District Court for the District of Connecticut (Daly, J.) under 42 U.S.C. §§ 1983 and 1988 seeking, inter alia, a declaration that § 16-333a is unconstitutional, and an injunction against enforcement of § 16-333a to void the AMSAT-Stamford Apartments exclusivity agreement.

Plaintiffs make three primary claims: first, that § 16-333a gives rise to violations of their constitutional free speech rights (count one); second, that § 16-333a violates the constitutional protection against governmental taking of property without just compensation (count three); and, third, that § 16-333a, as construed by the DPUC in the Summitwood decision, is preempted by the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq. (the “Communications Act”), as interpreted by the Federal Communications Commission (“FCC”) (counts two and four), and the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. (the “Cable Act”) (count six).

The district court adopted the recommended ruling of Magistrate Judge Margolis, and granted defendants’ summary judgment motion and dismissed the complaint. For the reasons set forth below, we affirm the district court’s judgment.

DISCUSSION

I. First Amendment Claims

For purposes of this discussion, we distinguish between the constitutional claims of [871]*871service-provider AMSAT and those of property-owner Stamford Apartments.

A. AMSAT

AMSAT advances two speech-related theories. First, AMSAT contends that the First Amendment, as applicable to the states through the Fourteenth Amendment, gives it a right to exclude Cablevision from Hoyt-Bedford. Second, AMSAT argues that § 16-333a favors franchised cable broadcasters over SMATV operators in a manner that burdens its free-speech rights, violating the Equal Protection Clause of the Fourteenth Amendment.

1. Right of Exclusion

AMSAT contends that the First Amendment protects it against enforcement of § 16-333a to provide cable competitors like Cablevision with access to apartment complexes to which SMATV operators like AMSAT currently have exclusive access. AMSAT’s theory is based on the assertion that its operations would not remain economically viable, and therefore its speech would be silenced, were it placed in direct competition with franchised cable service providers.

AMSAT proceeds on the erroneous premise that it has a constitutional right not only to speak, but to speak profitably. The First Amendment protects a cable operator’s right to make certain programming decisions and to disseminate its speech, as well as its viewers’ rights to receive the speech. See, e.g., Leathers v. Medlock, 499 U.S. 439, 444-45, 111 S.Ct. 1438, 1442, 113 L.Ed.2d 494 (1991) (noting that cable television operators engage in First Amendment protected speech). But “the first amendment does not guarantee that someone will listen to [AM-SAT’s] speech, nor pay to listen.” Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). Ending AMSAT’s monopoly control over cable service in buildings it now serves may drive AMSAT out of business.

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Cite This Page — Counsel Stack

Bluebook (online)
6 F.3d 867, 1993 WL 347063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amsat-cable-ltd-v-cablevision-of-connecticut-ltd-partnership-ca2-1993.