Beach TV Cable Co. v. Comcast of Florida/Georgia, LLC

808 F.3d 1284, 63 Communications Reg. (P&F) 1333, 2015 U.S. App. LEXIS 21246, 2015 WL 8116515
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 8, 2015
DocketNo. 15-10246
StatusPublished
Cited by6 cases

This text of 808 F.3d 1284 (Beach TV Cable Co. v. Comcast of Florida/Georgia, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beach TV Cable Co. v. Comcast of Florida/Georgia, LLC, 808 F.3d 1284, 63 Communications Reg. (P&F) 1333, 2015 U.S. App. LEXIS 21246, 2015 WL 8116515 (11th Cir. 2015).

Opinion

MARCUS, Circuit Judge:

Plaintiff Beach TV Cable Co., Inc. d/b/a Key TV (“Key TV”), a local over-the-air broadcaster serving the Florida Keys, brought this action in federal district court against Comcast of Florida/Georgia, LLC (“Comcast”), which owns and operates a cable television system serving the same area. Pursuant to federal law, Key TV is entitled to lease access on a Com-cast channel at a reasonable rate and free from editorial review. Key TV has alleged both that it was unlawfully overcharged for the right to broadcast its content over Comcast’s cable system and that Comcast illegally discriminated against it by not carrying the station in high definition or including it on Comcast’s “hospitality tier.” Key TV has also included in its complaint two state law claims arising under Florida’s consumer protection statute, the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), which are closely tied to federal regulations governing telecommunications in general and leased access to cable networks in particular. The district court stayed the entire case under the primary jurisdiction, doctrine pending resolution of Key TV’s federal law claims by the Federal Communications Commission (“FCC”).

We lack appellate jurisdiction to entertain this interlocutory appeal. Stay orders are generally not thought to be. final orders under 28 U.S.C. § 1291, particularly where the stay is designed to effect a referral to a federal agency. This stay does not end the litigation on the merits and it does not leave the district court without anything to do but execute the judgment. Nor does the collateral order doctrine apply to save appellate jurisdiction because the district court’s stay order is bound up with the merits of the case and does not render the plaintiffs suit effectively unreviewable on appeal from a final judgment. Accordingly, we dismiss the appeal.

I.

Because this case arises from a motion to dismiss plaintiffs First Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for a stay pending resolution of the claims by the FCC, the facts as asserted are taken to be true for the purposes of the appeal. Key TV, a Florida corporation, is a local FCC-licensed over-the-air broadcaster serving [1287]*1287the Florida Keys. Am. Compl. ¶¶ 1, 6-7. Key TV broadcasts “consist[] of locally produced videos that feature local restaurants, hotels, events, facilities, activities, news, weather and other information that is of interest to residents and tourists in the Florida Keys.” Id. at ¶ 9. Comcast is a Delaware limited liability company with its principal place of business in Pennsylvania. It owns and operates a cable television system that serves the Florida Keys. Beginning in 2008, Key TV and Comcast entered into a leased access agreement that required Comcast to carry Key TV programming on its cable system. Key TV paid $14,564 a month for this cable access.

The access Comcast granted Key TV arose from the requirements found in the Cable Communications Policy Act of 1984, codified in 47 U.S.C. § 532. Under this section of the law, cable operators are required to “designate channel capacity for commercial use by persons unaffiliated with the operator.” 47 U.S.C. § 532(b)(1). The expressed purpose behind this section was to “promote competition in the delivery of diverse sources of video programming and to assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with growth and development of cable systems.” 47 U.S.C. § 532(a). The FCC is responsible for determining the “maximum reasonable rates” that cable operators may charge for allowing use by unaffiliated persons. 47 U.S.C. § 532(c)(4)(A)®. The FCC is also responsible for setting “reasonable terms and conditions for such use.” 47 U.S.C. § 532(c)(4)(A)(ii). Moreover, the statute provides that “[a] cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming” except to the extent required to establish a reasonable price for the lessor or to determine whether the program contains obscenity, nudity, or indecency. 47 U.S.C. § 532(c)(2). Plaintiffs refer to this aspect of the law as the anti-discrimination provision, although the word “discrimination” does not actually appear in the statute.

Over the course of their lease agreement (from 2008 until 2012), Key TV paid Com-cast in excess of $871,000 for carrying Key TV over the Comcast Cable System.1 But, Key TV alleges, this sum exceeded the maximum amount the FCC permitted Comcast to charge by at least $283,000. Key TV further alleges that Comcast knew it had overcharged Key TV, but that it failed to promptly notify Key TV of the overcharges or remit payment. In addition, Comcast refused to carry Key TV in high definition format or on its hospitality tier.2

Key TV commenced this action in the United States District Court for the Southern District of Floiida asserting both diversity and federal question jurisdiction. It alleged multiple counts, which can be divided into three broad groupings of . claims. First, in counts one through five, Key TV basically alleged that Comcast breached the lease agreement by charging and collecting fees that substantially exceeded the maximum reasonable rates allowed by the FCC and then by failing to promptly notify or reimburse Key TV for those overcharges. In the second bundle of claims, in counts six through nine, Key TV alleged that Comcast acted in violation [1288]*1288of 47 U.S.C. § 532’s provision forbidding consideration of a program’s content by-refusing to carry Key TV in high definition format or on its hospitality tier. Key TV alleged that this refusal stems from Com-cast’s desire to promote Keys Information Station — a channel similar to Key TV in content, but owned and operated by Com-cast. Finally, in counts ten and eleven, Key TV alleged violations of FDUTPA based on the same conduct.

Comcast moved to dismiss the First Amended Complaint or, in the alternative, to stay the action pending resolution of the plaintiffs federal claims by the FCC. The district judge adopted the reasoning of Comcast’s argument and ordered that the entire action be stayed under the primary jurisdiction doctrine, despite Key TV’s claims that it was entitled to a jury trial under the Seventh Amendment. Under the primary jurisdiction doctrine, a court of competent jurisdiction may stay an action pending resolution of an issue that falls within the special competence of an administrative agency. Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir.2000).

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Bluebook (online)
808 F.3d 1284, 63 Communications Reg. (P&F) 1333, 2015 U.S. App. LEXIS 21246, 2015 WL 8116515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beach-tv-cable-co-v-comcast-of-floridageorgia-llc-ca11-2015.