Amicus Curiae Brief — Manhattan Community Access Corporation, et al., Petitioners v. DeeDee Halleck, et al.

No. 17-1702

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------MANHATTAN COMMUNITY ACCESS

CORPORATION, DANIEL COUGHLIN,

JEANETTE SANTIAGO, CORY BRYCE,

Petitioners,

v.

DEEDEE HALLECK, JESUS PAPOLETO MELENDEZ,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

-----------------------------------------------------------------BRIEF OF THE NEW YORK COUNTY LAWYERS

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

----------------------------------------------------------------ELLIOT DOLBY SHIELDS

ILYSSA S. FUCHS

ROBERT RICKNER

NEW YORK COUNTY LAWYERS

ASSOCIATION

14 Vesey Street

New York, New York 10007

CAROLYN A. KUBITSCHEK

Counsel of Record

LANSNER & KUBITSCHEK

325 Broadway, Suite 203

New York, New York 10007

(212) 349-0900

ckubitschek@Lanskub.com

Counsel for Amicus Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

8

I.

This Court should respect New York City’s

historic decision to create the country’s

first public access channels and designate

them as public forums ...............................

8

A. 1965-1970: Manhattan’s initial cable

experiment ........................................... 10

B. When New York City created the first

public access channels in 1970 it designated them as a public forum .......... 13

C. The cable companies’ operation of Manhattan’s public access channels under

the 1970 franchise agreements was inadequate ............................................... 15

D. The City extracted concessions from

Time Inc. and Warner Communications

Inc. to improve public access programming during their merger negotiations .... 18

E. The City used the renewal provisions

of the Cable Communications Policy

Act of 1984 to force Time Warner to

make significant investments to improve public access programming in

Manhattan ........................................... 21

ii

TABLE OF CONTENTS—Continued

Page

F. The 1990 Manhattan cable franchise

agreements strengthened the First

Amendment rights of Manhattan’s residents to freely express themselves on

the public access channels .................... 25

II.

This Court should encourage public forums like Manhattan’s public access channels because they create more speech ....... 28

CONCLUSION..................................................... 33

Appendix—Press Release dated May 16, 1991 .... App. 1

iii

TABLE OF AUTHORITIES

Page

CASES

Connick v. Myers, 461 U.S. 138 (1983) ................... 7, 29

Eastern Telecom Corp. v. Borough of East

Conemaugh, 872 F.2d 30 (3d Cir. 1989) ..................22

New York Times v. Sullivan, 376 U.S. 254 (1964) ......... 4

New York Times Company v. United States, 403

U.S. 713 (1971) ..........................................................4

Union CATV, Inc. v. City of Sturgis, 107 F.3d 434

(6th Cir. 1997).................................................... 30, 31

Whalen v. Roe, 429 U.S. 589 (1977) ............................30

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

STATUTES, BILLS AND REGULATIONS

H.R. Rep. No. 98-934 (1984), 1984 U.S.C.C.A.N.

4667 .........................................................................22

42 U.S.C. § 1983 ..........................................................28

47 U.S.C.

§§ 521 et seq. ...........................................................21

§ 521(2) ....................................................................22

§ 521(3) ....................................................................22

§ 546(a)–(g) ........................................................ 21, 22

§ 546(c)(1) ................................................................23

§ 546(d)(1) .......................................................... 23, 24

iv

TABLE OF AUTHORITIES—Continued

Page

RULES

Sup. Ct. R. 37.3(a) .........................................................1

OTHER AUTHORITIES

Clayton Knowles, 3 Given Franchises To Provide

Cables For Better City TV, N.Y. TIMES, Dec. 3,

1965, at 1, 78 ..................................................... 10, 11

David W. Dunlap, Pact May Improve Cable TV

Service, N.Y. TIMES, June 16, 1989, at B3 ......... 19, 20

David W. Dunlap, Panel Questions Time-Warner

Plan, N.Y. TIMES, May 28, 1989, at 33 .............. 19, 20

Douglas Davis, Public-Access TV Is Heard in the

Land, N.Y. TIMES, June 11, 1989, at 231...... 16, 17, 21

Editorial, Topics of The Times; The Midnight TV

Drama, N.Y. TIMES, May 19, 1990, at 22 ................21

Freddie Ferretti, City Delays Its Decision on

CATV Policy, N.Y. TIMES, July 24, 1970, at 63 .......14

George Gent, City Starting Test of Public Cable

TV, N.Y. TIMES, July 1, 1971, at 95 ................... 10, 16

Gretchen Dykstra, Public Access TV Gets Communities Involved, N.Y. TIMES, May 31, 1993,

at 22 .........................................................................26

Jack Gould, Community-Antenna TV: Picture of

Vast Potential, N.Y. TIMES, Dec. 6, 1965, at 75 .......10

James Barron, Cable TV Rates Likely to Rise in

Manhattan With New Pact, N.Y. TIMES, June

28, 1990, at 1, 30 .....................................................25

v

TABLE OF AUTHORITIES—Continued

Page

Laura Landro, Public-Access TV In New York

Tends Toward Sex, Sadism, WALL ST. J., Dec.

20, 1982, at D1 .................................................... 4, 17

Leah Churner, Out of the Vast Wasteland, MOVING IMAGE SOURCE (June 18, 2009), http://

www.movingimagesource.us/articles/out-of-thevast-wasteland-20090618 .......................................11

Leonard Buder, Time Warner Is Closer to a Cable Franchise Pact, N.Y. TIMES, June 3, 1990,

at 40 .........................................................................24

Livingston Rutherford, JOHN PETER ZENGER HIS

PRESS, HIS TRIAL, AND THE BIBLIOGRAPHY OF

ZENGER IMPRINTS 131 (New York Dodd, Mead

& Company 1905)......................................................3

Mike Bates, A Brief History of Booing in the

Bronx, THE HARDBALL TIMES (Apr. 30, 2018),

https://www.fangraphs.com/tht/a-brief-historyof-booing-in-the-bronx/..............................................3

MNN, ANN. REP. 2016, https://www.mnn.org/

sites/default/files/mnn_ar_122917.pdf .....................6

Noel Murray, 10 Things You Didn’t Know About

Wayne’s World, ROLLING STONE, Feb. 14, 2017,

https://www.rollingstone.com/movies/movienews/10-things-you-didnt-know-about-waynesworld-115363/ ..........................................................18

Richard Calhoun, CTR. FOR PUB. POLICY RESEARCH,

PUBLIC TELEVISION CHANNELS IN NEW YORK CITY:

THE FIRST SIX MONTHS 3 (1972), https://files.

eric.ed.gov/fulltext/ED066897.pdf .................. passim

vi

TABLE OF AUTHORITIES—Continued

Page

Robert E. Dallos, Advisers Propose More CATV

in City, N.Y. TIMES, Sept. 19, 1968, at 94 ................12

Todd S. Purdum, Time Warner Loses a Vote on

Cable TV, N.Y. TIMES, May 16, 1990, at 29–30 .......24

Wayne’s World, BOX OFFICE MOJO, https://www.

boxofficemojo.com/movies/?id=waynesworld.htm

(last visited Jan. 15, 2019) ......................................18

1

INTEREST OF AMICUS CURIAE1

The New York County Lawyers Association

(“NYCLA”) is a not-for-profit membership organization

committed to applying their knowledge and experience

in the field of law to the promotion of the public good

and ensuring access to justice for all. The Civil Rights

and Liberties Committee of the New York County Lawyers Association produces comments and reports on local, state and national issues relating to constitutional

rights. Both the NYCLA and its Civil Rights and Liberties Committee have a particular interest in government actions and the constitutional rights of

individuals in the borough of Manhattan—as Manhattan is simply the municipal corporation geographically

bound by, and coterminous with, New York County.

Founded in 1908, the New York County Lawyers

Association has historically been one of the largest and

most influential county bar associations in the country.

At the time of its founding, the only existing bar association in Manhattan precluded some lawyers from

membership by virtue of their ethnicity, religion, gender and/or race.

In 1907, a group of lawyers gathered in Carnegie

Hall to address the prospect of forming a bar group

where heritage and politics were not obstacles to

1

Pursuant to Rule 37.3(a) of the Rules of this Court, counsel

for all parties received timely notice of amicus’s intent to file this

brief and consented in writing. No counsel for any party authored

this brief in any part; no person or entity other than amicus or its

counsel made a monetary contribution to fund its preparation or

submission.

2

inclusion. The bar leaders who met were determined to

create, in the words of Hon. Joseph H. Choate, who

would become president in 1912, “the great democratic

bar association of the City [where] any attorney who

had met the rigid standards set up by law for admission to the bar should, by virtue of that circumstance,

be eligible for admission.”

Throughout its history, NYCLA’s bedrock principles have been the inclusion of all lawyers who wish to

join, public education, and the active pursuit of legal

system and public policy reforms at the local, state and

national levels. NYCLA’s groundbreaking 1952 report

on public apathy toward delinquent children brought

wide acclaim and won the endorsement of Mayor Robert F. Wagner. In 1943, the Association refused to renew its affiliation with the American Bar Association

for its refusal to admit black lawyers. In 1949, NYCLA

sponsored a conference on civil rights in the postWorld-War-II era. In addition, NYCLA’s Women’s

Rights Committee challenged and helped change provisions of the Internal Revenue Code that had a discriminatory impact on women and married couples.

For these reasons, NYCLA has a direct and vital

interest in the issues before this Court. This brief has

been approved by the NYCLA Executive Committee.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

New York is well-known as a city of loud-mouths.

New Yorkers have opinions on every issue, and when

3

they voice those opinions, they don’t mince words. In

professional baseball stadiums, for example, New

Yorkers boo their favorite players when they strike out,

a form of expression that does not commonly occur in

other cities in the United States. Mike Bates, A Brief

History of Booing in the Bronx, THE HARDBALL TIMES

(Apr. 30, 2018), https://www.fangraphs.com/tht/a-briefhistory-of-booing-in-the-bronx/.

The esteem in which New Yorkers hold their right

to voice their opinions is deeply engrained in New

York’s history and tradition. For example, even in colonial times, journalist and printer John Peter Zenger so

often published uncomplimentary statements about

the colonial governor that the governor imprisoned

Zenger and sued him for libel. “The results of the trial

had imbued the people with a new spirit; henceforth

they were united in the struggle against governmental

oppression, and as Gouverneur Morris has well said:

‘The trial of Zenger in 1735 was the germ of American

freedom, the Morningstar of that liberty which subsequently revolutionized America.’ ” Livingston Rutherford, JOHN PETER ZENGER HIS PRESS, HIS TRIAL, AND THE

BIBLIOGRAPHY OF ZENGER IMPRINTS 131 (New York

Dodd, Mead & Company 1905).

Exercising their right to free expression, New

Yorkers have consistently tested and expanded the

boundaries of that right. For example, in 1960, the New

York Times took a chance when it published statements about civil rights issues in the South, which

Montgomery, Alabama, Public Safety Commissioner

L.B. Sullivan considered personally defamatory. His

4

libel lawsuit ended in a landmark decision from this

Court upholding and expanding freedom of the press.

New York Times v. Sullivan, 376 U.S. 254 (1964). A few

years later, in 1971, the New York Times again tested

the limits of free expression by printing the Pentagon

Papers. Again, this Court ruled in favor of free expression. New York Times Company v. United States, 403

U.S. 713 (1971). This passion for the right and opportunity to speak one’s mind underlies the instant case.

This passion led to the creation of public access

channels that gave New Yorkers an uncensored forum

to express themselves on matters of public concern,

free of charge, and on a first-come, first-served basis.

Laura Landro, Public-Access TV In New York Tends

Toward Sex, Sadism, WALL ST. J., Dec. 20, 1982, at

D1, 14. In 1970, the City of New York granted 20-year

cable television franchises to two companies, which

five years earlier, had begun laying cable wires under

the streets of Manhattan. In exchange for granting

them 20-year monopoly franchises and public easements to lay cable wires on public property in Manhattan, the City required that each company administer

two channels for New York City’s commercial-free selfexpression. Id. The public access channels, while administered by the cable companies, were “owned” by

the City—similar to the manner in which the City,

when it sells land to real estate developers, retains

ownership of a plot of land and requires the developer

to build and maintain a public park or playground on

that plot.

5

That same passion for free expression is why, in

1990, when the City negotiated the renewal of the

Manhattan cable television franchise agreements, it

included several provisions that strengthened the

First Amendment rights of New Yorkers to freely express themselves on public access channels—most importantly by requiring that the public access channels

be administered by a nonprofit community access organization chosen by the Manhattan Borough President, rather than by the cable companies themselves.

In 1991, Manhattan Borough President Ruth

Messinger chose the Petitioner, Manhattan Community Access Organization, which does business as the

Manhattan Neighborhood Network (“MNN”), to administer Manhattan’s public access channels. As explained in public statements by Borough President

Messinger and MNN’s board chairperson, Gretchen

Dykstra, the City considered public access channels to

be public forums. Their statements demonstrated that

the City believed a nonprofit community access organization would do a better job of administering the public access channels for the benefit of the public than the

cable companies themselves. Importantly, MNN’s mission was, and still is,

to ensure the ability of Manhattan residents

to exercise their First Amendment rights

through moving image media to create opportunities for communication, education, artistic expression and other non-commercial uses

of video facilities on an open and equitable basis.

6

In providing services, we seek to involve the

diverse racial, ethnic and geographic communities of Manhattan in the electronic communication of their varied interest, needs,

concerns and identities.

MNN, ANN. REP. 2016, https://www.mnn.org/sites/default/

files/mnn_ar_122917.pdf.

In sum, the City clearly intended to create a public

forum when it created the nation’s first public access

channels in the 1970 Manhattan cable franchise agreements. The public access channels themselves constitute a form of property, of which the City retained

ownership, in exchange for allowing the cable companies to lay their cable wires on public land. Unfortunately, because the public access channels were

administered by the private cable companies, they

were underfunded, underpublicized, and thus, underused by many of Manhattan’s diverse communities.

That is why, when the City negotiated the renewal of

Manhattan’s cable franchise agreements in 1990, it required that the public access channels be administered

by a nonprofit community access organization (“CAO”),

and further required that the newly formed Time

Warner, Inc.—the parent company of both of Manhattan’s cable operators—provide $5.35 million in startup

funding for the Manhattan CAO to create additional

public access channels. It also required that Time

Warner agree to other terms that would ensure the

CAO was properly funded, publicized and utilized by

all of Manhattan’s diverse community groups. Moreover, the City chose MNN to administer the public

7

access channels and mandated that MNN expand use

of the public access channels by all of Manhattan’s diverse communities, to ensure public access to a diversity of opinions—especially opinions not aired in

mainstream media—on matters of public concern.

That decision—to create a public forum—should

be respected. Especially where, as here, the public forum was created by the City with the explicit intent of

increasing the diversity of voices and viewpoints on

matters of public concern. As this Court has repeatedly

reaffirmed, speech on matters of public concern “occupies the highest rung on the hierarchy of First Amendment values, and is entitled to speech protection.”

Connick v. Myers, 461 U.S. 138, 145 (1983).

Petitioners argue that when the state delegates

responsibility to an organization to administer the operation of its property, the organization’s operation of

the property does not constitute state action. But this

is not that case. Here, the City of New York expressly

created a public forum in 1970 when it launched the

nation’s first experiment with public access television,

and in 1990, after the private cable companies had

failed to adequately administer the public access channels for nearly twenty years, required as a condition of

renewing the cable franchise agreements that the public forum be administered by an independent nonprofit

community access organization—MNN. If the Court

accepts Petitioners’ argument, the only First Amendment-protected public forums would be the ones under

strict state control. That should not be the only option.

Allowing municipalities to partner with private

8

entities to create and administer public forums will

lead to more free speech.

For these reasons, and the reasons detailed more

fully herein, the decision below correctly found that

Respondents’ amended complaint pled sufficient facts

to plausibly allege Manhattan’s unique public access

channels are designated public forums, and that Petitioners, as operators of the subject public access channels, are state actors under the facts of this case.

------------------------------------------------------------------

ARGUMENT

I.

This Court should respect New York City’s

historic decision to create the country’s

first public access channels and designate

them as public forums.

Public access television is the result of an experiment by the City of New York, which created the

world’s first public access channels in 1970. That year,

the City awarded 20-year monopoly cable franchises to

Teleprompter Corporation (later renamed Manhattan

Cable TV), and Sterling Manhattan Cable (later renamed Paragon Cable). The original franchise agreements, signed in the summer of 1970, required both

Sterling and Teleprompter to provide two public channels each by July 1, 1971. The agreements further required that additional public channels be made

available as channel capacity expanded. Richard

Calhoun, CTR. FOR PUB. POLICY RESEARCH, PUBLIC TELEVISION CHANNELS IN NEW YORK CITY: THE FIRST

9

SIX MONTHS 3 (1972), https://files.eric.ed.gov/fulltext/

ED066897.pdf.

Sterling and Teleprompter needed easements to

lay their cable wires on public property; in exchange,

the City required that each company make two public

access channels available to New Yorkers on a firstcome, first-served basis, and that they provide adequate studio facilities and technological assistance to

noncommercial individuals and groups. Id. at 1. The

franchise agreements also prohibited the companies

from controlling program content “except as is required to protect the Company from liability under applicable law.” Id. at 27-28. The City’s goal was that, by

opening programming time for community dialogue,

the public access channels would increase the diversity

of opinions on matters of public concern.

The purpose of the public access channels was to

afford New York’s diverse communities a chance to discuss, “some of the problems that are unique . . . that

are of interest” to them and to “encourage young people

who were very militant in some areas who said that

they . . . were denied access to some of the public

media, to give them an opportunity to say what they

wanted to say.” Id. at 34.

The New York Times hailed the public access

channels as, “the first genuine ‘Town Meeting of the

Air’ and a major step toward the political philosopher’s

dream of participatory democracy,” and recognized

that the City and cable companies expected, “if successful, [would] set the pattern for the rest of the

10

country.” George Gent, City Starting Test of Public Cable TV, N.Y. TIMES, July 1, 1971, at 95.

A. 1965–1970: Manhattan’s initial cable experiment.

The 1970 franchise agreements and creation of the

four public access channels was a result of Manhattan’s initial five-year experiment with cable television,

which had begun on December 2, 1965, when New York

City awarded the world’s first major urban cable television franchises to Sterling and Teleprompter in Manhattan, and to CATV Enterprises in the Riverdale

neighborhood of the Bronx. Clayton Knowles, 3 Given

Franchises To Provide Cables For Better City TV, N.Y.

TIMES, Dec. 3, 1965, at 1, 78. Known as Community Antenna Television (“CATV”), the new service promised

to ameliorate the reception problem experienced by 40

to 50 percent of Manhattan’s approximately 554,900

television homes, caused by Manhattan’s tall buildings, which interfered with television signals broadcast over the airwaves. Jack Gould, CommunityAntenna TV: Picture of Vast Potential, N.Y. TIMES, Dec.

6, 1965, at 75.

CATV solved the interference problem by erecting

a separate antenna where there was no interference.

The antenna received broadcast signals and relayed

those signals to subscribers via coaxial cables. Under

the 1965 agreements, the companies obtained the right

to run their cables beneath the City’s streets, while the

City maintained control of the rates and performance

11

standards. The Sterling franchise extended south from

86th Street on the East Side and 79th Street on the

West Side of Manhattan Island, while the Teleprompter franchise extended north, covering the rest

of the island. Id.

The 1965 franchise agreements required the companies to carry the City’s 12 broadcast channels and

prohibited “pay TV” and programming originated in

other communities. Clayton Knowles, 3 Given Franchises To Provide Cables For Better City TV, Dec. 3,

1965, N.Y. TIMES, p. 1, 78. The term of the “experimental” franchise agreements was just two years. Additionally, if the companies’ profits exceeded seven

percent, the City had the option of reducing installation and service charges. Id. Moreover, while the companies were limited to airing the City’s 12 channels,

the cables had the capacity to carry more than 30 channels. Leah Churner, Out of the Vast Wasteland, MOVING

IMAGE SOURCE (June 18, 2009), http://www.moving

imagesource.us/articles/out-of-the-vast-wasteland-2009

0618.

The potential public benefits of cable television

were immediately obvious, so much so that, in June

1967, Mayor John Lindsay appointed a task force,

chaired by Fred W. Friendly, the former president of

CBS News and then-current Columbia University professor of journalism, to consider “how modern telecommunications technology can be best exploited to

further the economic life and social well-being of the

City, and how the benefits of this technology can best

be preserved for all who live and work in the City.”

12

Calhoun, supra, at 33. On September 18, 1968, the task

force issued its report, finding that “[w]hat is at stake

here is more than a method for the reception of television programs. We are ultimately concerned with

methods of communication that can materially help

educate our children and meet the special needs of

those in the city who are economically and culturally

deprived.” Robert E. Dallos, Advisers Propose More

CATV in City, N.Y. TIMES, Sept. 19, 1968, at 94. The

task force concluded that cable franchise agreements

should require the cable operators to reinvest some

portion of their profits into “quality programming” that

is in the “public interest.” Calhoun, supra, at 13.

The cable companies publicly agreed that the new

technology should be used, in part, to serve the interests of Manhattan’s diverse communities. Manhattan

Cable was “particularly pleased” that the Task Force

report “supports what we have been advocating . . . for

some time. That is that the full capabilities of the cable

we’re installing should be used in every way to benefit

the community.’ ” Dallos, supra, at 94. Likewise, Teleprompter executive Irving Kahn agreed that cable

companies had a duty to facilitate social change and

must “face up to the realities of ghetto programming—

and the whole spectrum of community relations,

employee relations, hiring practices and other issues

that go hand in hand with establishing and keeping an

effective role in the community.” Calhoun, supra, at 31.

13

B. When New York City created the first

public access channels in 1970 it designated them as a public forum.

When the City expanded its cable television experiment in 1970, the proposed contracts with the cable

companies reflected the City’s vision of public access

for all New Yorkers. The new franchise agreements

called for a channel capacity of 17 by July 1, 1971, and

24 within three years. Of the original seventeen channels, 11 would be for regular UHF and VHF broadcasting, two would be “public channels” and one would be

for a “company channel” on which the companies could

air their own original programming. Thereafter, additional channels would be allotted in a sequence of one

city channel, two public channels, and three “additional channels” that the company could use for anything but “pay television.” Calhoun, supra, at 27.

The franchise agreements required that access to

the public channels be made available on a “first-come,

first-served basis,” and that the companies provide

“adequate studio facilities” and “appropriate technical

assistance” to “members of the public.” Moreover, the

companies were prohibited from controlling program

content “except as is required to protect the Company

from liability under applicable law” or programming

that was essentially for a commercial purpose. Calhoun, supra, at 27–28.

The proposed franchise agreements also required

the wiring of all prisons, hospitals, police and fire

stations, day care centers and public schools free of

14

charge for the receipt of all “basic” FCC required

services. Additionally, they required the companies to

provide “the best possible signal available under the

circumstances and quality reception of its Basic

Service to each subscriber so that both sound and

picture are produced free from visible and audible

distortion.” Id. The terms of the agreements were to be

20-years, and called for review of basic services by the

City after five years, and rate review after eight years.

Calhoun, supra, at 28.

Recognizing that support of the public access

channels would be key to securing City approval of

their proposed 20-year monopoly cable franchise

agreements, executives from both Sterling and Teleprompter publicly expressed strong support for the

City’s vision of the public access channels. Charles F.

Dolan, then President of Sterling, the holder of the

southern Manhattan franchise, stated that the

proposed new contract was “a bold effort to open the

doors wide to community participation in cable

television. Under this contract no one is excluded.”

Calhoun, supra, at 28. Similarly, Teleprompter executive Irving Kahn rebuffed critics of the proposed contracts, stating, “[a]ny contention that we have not, may

not or will not operate in the public interest is false.

Our record to date is one of public service. Our promise

to you safeguarded by the language of a very tough,

expertly drawn contract is that we will always operate

in the public interest.” Freddie Ferretti, City Delays

Its Decision on CATV Policy, N.Y. TIMES, July 24, 1970,

at 63.

15

The City ratified the proposed franchise agreements, thereby creating the world’s first public access

television channels.

C. The cable companies’ operation of Manhattan’s public access channels under

the 1970 franchise agreements was inadequate.

The agreements themselves left unanswered

questions regarding public access administration,

funding, and the level of editorial control that the companies could assert. Accordingly, in 1971, the City

drafted interim rules for Manhattan’s public access

channels, “to establish that anybody and everybody

who wanted an opportunity to be heard could get on

and be heard.” Calhoun, supra, at 43. The only restrictions were on obscene material and programming

by unaccompanied minors (under the age of 18). Id. at

44.

The companies requested that applications for

time allotments be submitted two weeks in advance,

but that time could generally be shortened if needed.

Id. The information required to be submitted included

the program’s length, subject, list of individuals appearing in it, whether it was live or taped, the sponsoring organization or individual, and whether studio

facilities would be required. Id.

Public Access Channel C was for series programming, and Public Access Channel D was for non-series

programming. The City’s Interim Rules required that

16

space on Channel C be awarded on a first-come, firstserved basis with no more than two hours of prime

time (7:00-11:00 p.m.) being assigned to any one user.

Id. Users were also limited to seven hours of total program time per week, unless there were open time slots.

Id. Channel D was for non-series, or occasional, instead

of regular, programming. Programmers were limited to

no more than one exposure in a specific time slot per

month and would be bumped if their total programming for the month was greater than five hours between both channels. Id.

During the early years, the biggest challenge for

public access programming was informing communities that the channels were available for their use, free

of charge. George Gent, Public Access TV Here Undergoing Growing Pains, N.Y. TIMES, Oct. 26, 1971, at 83.

Besides publicity, the other problem was money. The

main video production centers were run by nonprofit

organizations and funded with seed money from private foundations. Id.

As predicted, the Manhattan cable franchise

agreements became a model for franchising authorities nationwide. Throughout the 1970s and 1980s,

most franchising authorities required cable companies

to create and administer public access channels as a

condition of running cable wires on public property. By

1989, public access was “a vital part of almost 2,000

CATV systems across the United States.” Douglas Davis, Public-Access TV Is Heard in the Land, N.Y. TIMES,

June 11, 1989, at 231.

17

Just like Sterling and Teleprompter, these other

companies knew that public access was a “major consideration in awarding cable franchises.” Laura

Landro, Public-Access TV In New York Tends Toward

Sex, Sadism, WALL ST. J., Dec. 20, 1982, at 1, 14. Unlike

New York, however, other franchising authorities

awarded cable franchises pursuant to open bidding

processes, which led cable companies “to try to outdo

each other with multimillion-dollar grants for public

programming, lots of studios, large production staffs

and crews, and state of the art equipment.” Id. Because

of the large amount of money they received, public access boomed “in virtually every large community beyond Manhattan.” Douglas Davis, Public-Access TV Is

Heard in the Land, N.Y. TIMES, June 11, 1989, at 231.

On the other hand, the Manhattan cable franchise

agreements, and New York City and State regulations,

provided stronger First Amendment protections for

its public access channels. This led Manhattan’s “underfinanced channels C and D [to] offer . . . programming that [was] thoroughly unique” and “stretch[ed]

our rigid notion of what television [could] be, or do.”

Id. Manhattan’s public access channels remained

“citadels of electronic democracy,” that offered “on

shoestring budgets” a variety of programs such as

“high-minded seminars on topics ranging from urban

decay to sexist mythology, video-art experiments featuring frisky computerized graphics and earnest documentary studies of often neglected subjects—like the

plight of the disenfranchised or the perils of hibiscus

mold.” Id.

18

Ironically, while Manhattan public access television was still truly avant-garde, on February 2, 1989,

in NBC’s Manhattan studios, Saturday Night Live

aired a sketch called Wayne’s World, centered on a fictional local public access television program in Aurora,

Illinois, hosted by Wayne Campbell (Mike Myers), an

enthusiastic and sardonic long-haired metalhead, and

his timid and sometimes high-strung, yet equally

metal-loving sidekick and best friend, Garth Algar

(Dana Carvey). Noel Murray, 10 Things You Didn’t

Know About Wayne’s World, ROLLING STONE, Feb. 14,

2017, https://www.rollingstone.com/movies/movie-news/

10-things-you-didnt-know-about-waynes-world-115363/.

Wayne’s World quickly became one of the show’s most

popular recurring sketches—appearing a total of 19

times. Id. In 1992, Mike Myers and Dana Carvey’s

Wayne’s World movie, based on the sketches, became

the 8th highest grossing movie of the year. Id. Since its

release, the movie has grossed a total of approximately

$180 million. Wayne’s World, BOX OFFICE MOJO,

https://www.boxofficemojo.com/movies/?id=waynesworld.

htm (last visited Jan. 15, 2019).

D. The City extracted concessions from

Time Inc. and Warner Communications

Inc. to improve public access programming during their merger negotiations.

It was in this backdrop that on March 4, 1989,

Time Inc. and Warner Communications Inc. announced

their plan to merge into Time Warner, Inc. and become

the largest media company in the world. The merger

19

negotiations took place approximately one year prior

to expiration of the Manhattan cable franchise agreements held by Manhattan Cable Television (formerly

Sterling) and Paragon Cable Manhattan (formerly Teleprompter), both of which were owned by subsidiaries

of Time Inc.

When Time and Warner Communications announced their planned merger on March 4, 1989, both

companies had to obtain approval from the City to

transfer the six cable franchises that they owned or

controlled into the merged corporation, including

Manhattan Cable TV and Paragon Manhattan Cable.

David W. Dunlap, Panel Questions Time-Warner Plan,

N.Y. TIMES, May 28, 1989, at 33. Time Inc. owned the

two Manhattan franchises, and Warner Communications owned four franchises in Queens and Brooklyn.

Id. Combined, the companies controlled cable television in 60 percent of New York City’s households. Id.

The transfer negotiations were hampered by, inter alia,

the cable operators’ failure to comply with all of the

requirements of the 1970 franchise agreements. Under

the terms of the 1970 franchise agreements, Time Inc.

was supposed to have completed laying cable wire to

all of Manhattan’s residential buildings by 1974. As of

March 1989, however, an estimated 200,000 residents

lived on blocks that had not yet been wired. David W.

Dunlap, Pact May Improve Cable TV Service, N.Y.

TIMES, June 16, 1989, at B3. The unwired blocks were

located primarily in Harlem and the Lower East Side,

Manhattan’s poorest and most racially segregated

neighborhoods. Id.

20

City officials were particularly concerned that

Harlem and the Lower East Side were disproportionately underserved by the cable operators. Id. They

were also concerned that with one company controlling

the majority of New York City’s cable programming,

program diversity would decrease. David W. Dunlap,

Panel Questions Time-Warner Plan, N.Y. TIMES, May

28, 1989, at 33.

Gerald M. Levin, vice chairman of Time Inc., who

would become vice chairman of Time Warner, answered that Time Warner was “absolutely committed”

to diversity, which he said was more a product of the

number of channels than the number of operators. Id.

After several months of negotiations, the City approved the franchise transfers on June 15, 1989. David

W. Dunlap, Pact May Improve Cable TV Service, N.Y.

TIMES, June 16, 1989, at B3. As a condition of the approval, however, Time Inc. agreed to complete the wiring of all residential blocks in Manhattan by July

1990—and thereby increase public access viewership—before the expiration of the original franchise

agreement. John L. Hanks, director of the city’s Bureau of Franchises, stated that Time ‘‘stood no chance

whatever, as things stood a few months ago,’’ of getting

a renewal. Id. The agreement to transfer the franchises

did not affect the 1990 expiration dates of the underlying franchise agreements.

21

E. The City used the renewal provisions of

the Cable Communications Policy Act of

1984 to force Time Warner to make significant investments to improve public access programming in Manhattan.

Renewal negotiations were likewise hampered by

the cable companies’ failures with respect to public access. “From the city’s point of view, the transmission of

noncommercial programs by the public, government

and nonprofit institutions is the most important issue

in cable’s future.” Editorial, Topics of The Times; The

Midnight TV Drama, N.Y. TIMES, May 19, 1990, at 22.

Because Manhattan Cable and Paragon had failed to

adequately fund, promote or encourage their use,

“[n]estled in the heart of the country’s most sophisticated audience, access television languishe[d], like a

child starving amid plenty.” Douglas Davis, PublicAccess TV Is Heard in the Land, N.Y. TIMES, June 11,

1989, at 31.

The renewal negotiations were governed by the

Cable Communications Policy Act of 1984, 47 U.S.C.

§§ 521 et seq. (the “Cable Act”), which provided procedural and substantive rules for renewing cable franchise agreements. 47 U.S.C. § 546(a)–(g). But for Cable

Act rules establishing the reasons a franchise authority may refuse to renew a cable franchise, and the

standards and procedures the Act established, the City

likely would have lacked the bargaining power to obtain strong protections for public access channels, including the administration of those channels by an

22

independent not-for-profit community access organization.

The Cable Act was intended, inter alia, to “establish guidelines for the exercise of Federal, State, and

local authority with respect to the regulation of cable

systems” through procedures and standards that “encourage the growth and development of cable systems

and which assure that cable systems are responsive to

the needs and interests of the local community.” 47

U.S.C. §§ 521(3), 521(2).

The Cable Act reflects Congress’ intent that “a cable operator whose past performance and proposal for

future performance meet the standards established by

this section [will] be granted renewal,” H.R. Rep. No.

98-934, at 7 (1984), 1984 U.S.C.C.A.N. 4667. Thus, the

Cable Act recognizes that a cable franchise operator

has “a significant federal property expectation” in the

renewal of its franchise. Eastern Telecom Corp. v. Borough of East Conemaugh, 872 F.2d 30, 35 (3d Cir. 1989).

Nonetheless, the Act does not guarantee the operator

renewal.

The Cable Act establishes formal franchise renewal procedures at 47 U.S.C. §§ 546(a)–(g). The formal renewal process can be initiated by either the

franchising authority (on its own initiative) or the cable operator (by submitting a written renewal notice to

the city) during the six-month period beginning three

years before franchise expiration. If the operator does

not submit a request to the city during this six-month

window, the city is under no legal obligation to follow

23

formal Cable Act procedures—unless the city has commenced a formal proceeding on its own initiative.

At the same time, the Cable Act permits a franchisee to pursue informal negotiations with the franchising authority. Thus, the statute explicitly encourages

state and local cable franchisors and operators to pursue a “two-track” process, whereby a franchising authority simultaneously pursues both the formal and

informal renewal processes. State and local franchisors

must establish procedures which allow them to proceed on both tracks.

A franchising authority may deny renewal if, after

the required administrative proceedings, the authority

finds any of the following:

•

the cable operator has failed to substantially

comply with the material terms of the existing

franchise and with applicable law;

•

the quality of the operator’s service has been

unreasonable in light of community needs;

•

the operator lacks the requisite financial, legal or technical ability; or

•

the operator’s proposal is inadequate to meet

the future cable-related community needs and

interests, taking into account the cost of meeting such needs and interests.

47 U.S.C. § 546(c)(1).

A renewal request may be denied based on any one

of the four statutory factors. 47 U.S.C. § 546(d)(1).

However, a decision not to renew cannot be based on

24

past defects in performance if (a) the operator was not

given notice and an opportunity to cure the defects, or

(b) if the city has waived its right to object or has acquiesced in past failures to perform by failing to object

after receiving written notice from the operator of a

“failure or inability to cure.” Id.

Because of the Manhattan cable operator’s failure

to comply with the requirements of the 1970 franchise

agreements, and their weak proposals for public access

going forward, on May 16, 1990, the City preliminarily

denied renewal of the two cable television franchises.

Todd S. Purdum, Time Warner Loses a Vote on Cable

TV, N.Y. TIMES, May 16, 1990, at 29–30. Manhattan

Borough President Ruth Messinger negotiated with

Time Warner until minutes before the renewal vote,

pressing company executives for more public access

funding and better production facilities for public access producers. Id.

The denial triggered an administrative hearing

under the Cable Act’s formal renewal provisions. Id. At

the same time, Time Warner and the City continued to

negotiate informally.

Several weeks later, negotiators reached agreement on several points. The main area of disagreement

concerned the amount of capital and operational support that Time Warner would contribute for public access channels. Leonard Buder, Time Warner Is Closer

to a Cable Franchise Pact, N.Y. TIMES, June 3, 1990, at

40.

25

After several more weeks of negotiations, Time

Warner ultimately agreed to several provisions demanded by the City to ensure the public access channels were properly funded and administered, and the

City renewed the franchise agreements on June 27,

1990. James Barron, Cable TV Rates Likely to Rise in

Manhattan With New Pact, N.Y. TIMES, June 28, 1990,

at 1, 30.

F. The 1990 Manhattan cable franchise

agreements strengthened the First

Amendment rights of Manhattan’s residents to freely express themselves on the

public access channels.

When the City negotiated renewal of the franchise

agreements in 1990, it used the Cable Act and other

legal developments to require Time Warner to improve

and strengthen public access television in Manhattan.

It did so by requiring, inter alia, that, instead of being

administered by the companies themselves, the public

access channels be administered by a nonprofit community access organization chosen by the Manhattan

Borough President; Time Warner provide $5.35 million

in startup capital funding to the community access organization; and Time Warner fund a community access

grant program by paying the community access organization a fee of $3 per cable subscriber per year.

Thereafter, acting on behalf of the City of New

York, Manhattan Borough President Ruth Messinger

chose the Petitioner, Manhattan Community Access

26

Organization, which does business as the Manhattan

Neighborhood Network (“MNN”), to administer Manhattan’s public access channels. MNN’s mission is to

train “community-based organizations to produce public access shows telling their individual stories” and to

ensure the ability of Manhattan’s residents to exercise

their First Amendment rights. Gretchen Dykstra, Public Access TV Gets Communities Involved, N.Y. TIMES,

May 31, 1993, at 22.

MNN’s bylaws and franchise agreement with the

City protect quintessential New York free speech

rights—MNN must air residents’ programs on a firstcome, first-served basis, and MNN and the City are

prohibited from exercising editorial control or otherwise regulating public access programs based upon

content.

Borough President Messinger reaffirmed the

City’s intent to create a public forum in a press release

on May 16, 1991, the day MNN’s initial board of directors ratified its bylaws. Messinger stressed that the bylaws contained several provisions that she had insisted

be included, including that MNN have “an open and

independent board.”2 Messinger highlighted several

bylaw provisions:

* A 19-member board, representing the

ethnic, economic and geographical diversity of

Manhattan will, one year after the CAO

begins training sessions for public access

2

Press Release dated May 16, 1991 is appended to this brief.

27

producers, include six slots reserved for active

public access producers.

* The establishment of an Advisory Nominating Committee, to recommend individuals for

the six public access producer slots on the

Board.

* Tough prohibitions against conflicts of interest, ensuring the independence and integrity

of the Board.

* In addition to its Annual Meeting the Board

will hold at least two meetings each year that

will be open to the public.

Borough President Messinger stressed that MNN

was committed to ensuring that experienced community programming producers will participate in the

governing and setting of MNN’s policies through reserving six of the 18 seats on the board of directors for

such community producers.

The franchise agreement required that Time

Warner provide $5.35 million to MNN as initial

startup capital to purchase studio space and equipment. Before the funds were disbursed, MNN was required to submit a capital expenditure plan to the

Borough President and State Commission on Cable

Television, detailing how it intended to spend the

funds. The franchise agreement also required Time

Warner to fund a community access grant program by

paying MNN a fee of $3 per cable subscriber per year.

The changes in the 1990 franchise agreement

were intended to ensure that Manhattan’s public

28

access channels remain a public forum where all Manhattan residents could freely express themselves. The

renewed agreement amplified the voices of public access producers by requiring significant investment in

production facilities, community training in video production and editing, and most importantly, by delegating administration of the public access channels—

which remain City property—to a nonprofit community access organization. These choices were informed

by 20-years of neglectful administration by Manhattan’s cable operators and were intended to strengthen

the First Amendment protections of New Yorkers to

freely express themselves on Manhattan’s public access channels.

Administration of government property is a public

function, and the vehicle for protecting First Amendment rights is 42 U.S.C. § 1983. Thus, MNN is a state

actor and was properly sued under § 1983 in this case.

II.

This Court should encourage public forums like Manhattan’s public access channels because they create more speech.

When the City of New York launched the world’s

first experiment with public access television in the

1970 Manhattan cable franchise agreements, it intended to create a public forum, and it succeeded.

Twenty years later when the City renewed the Manhattan cable franchise agreements in 1990, it intended

to strengthen the First Amendment protections for the

public access channels, and to expand the public

29

forums by creating additional public access channels.

Again, it succeeded. The City of New York’s decision to

create a new public forum should be respected and protected by this Court, because it creates more speech.

As this Court has repeatedly reaffirmed, speech on

matters of public concern “occupies the highest rung

on the hierarchy of First Amendment values, and is entitled to speech protection.” Connick v. Myers, 461 U.S.

138, 145 (1983).

Petitioner’s position, by contrast, would inhibit

free speech because it would limit the only First

Amendment-protected public forums to the ones under

strict state control. That should not be the only option.

Allowing state and local governments to partner

with private entities to create and administer new

public forums should be encouraged and protected by

this Court because doing so creates more speech and

amplifies diverse viewpoints, which is essential to the

functioning of our democracy. Where the government

clearly intended to create a public forum, the forum’s

administration by a private nonprofit corporation, instead of the government itself, should not preclude a

finding that the forum is subject to constitutional protections. This is especially true, where, as here, speech

on the public forum is uncensored and uninfluenced by

commercial interests, and administered on a firstcome, first-served basis. Under these circumstances,

the intent to create a public forum could be inferred—

however, as demonstrated throughout this brief, and in

Respondents’ brief, there is no need to infer the City’s

intent, as numerous City officials, cable company

30

executives, and MNN members have explicitly stated

that the City’s intent was that the public access channels would be a First Amendment-protected public forum.

This Court has “frequently recognized that individual States have broad latitude in experimenting

with possible solutions to problems of vital local concern.” Whalen v. Roe, 429 U.S. 589, 597 (1977). This case

involves just such a matter of vital local concern: New

York City’s courageous experiment with public access

television in Manhattan. City officials, cable operators

and the media all acknowledged, when Manhattan

launched the nation’s first public access television in

1971, that the experiment would set an example for

other state and local franchising authorities nationwide.

New York City learned from its experiment. Thus,

when it renewed its cable franchise agreements with

Time Warner in 1990, the City significantly improved

public access television in Manhattan. Most importantly, the 1990 franchise agreements removed administration of the public access channels from the

cable operators themselves, and instead required that

all of Manhattan’s public access channels be administered by a nonprofit community access organization.

Importantly, courts have held that they should defer to state and local franchising authorities’ determinations of their community’s cable-related needs and

interests. See Union CATV, Inc. v. City of Sturgis, 107

F.3d 434 (6th Cir. 1997). In Sturgis, the Sixth Circuit

31

Court of Appeals held that the city franchising authority’s “knowledge of the community give it an institutional advantage in identifying the community’s cable

needs and interests.” 107 F.3d at 441. Particularly significant was the court’s determination that the “granting of a cable franchise is a legislative act traditionally

entitled to considerable deference from the judiciary.”

Id. The court found that judicial review of “a municipality’s identification of its cable-related needs and interests is very limited” and that a court should defer to

the franchising authority’s identification of the community’s needs and interests except to the extent necessary to weigh the needs and interests against the

cost of implementing them. Id. The standard of review

the court found appropriate is to view the evidence in

the light most favorable to the City, giving it the “benefit of all reasonable inferences,” and only reverse if

“reasonable minds could not come to a conclusion”

other than that reached by the City. Id.

This Court should defer to New York City’s decision to create a public forum, administered by a private

nonprofit community access organization—MNN. The

administrative structure of Manhattan’s current public access channels was chosen by the City after 20

years of operating the nation’s first public access channels under the 1970 franchise agreements. Based on

that experience, the City chose to retain some features

of the original public access channels—administering

time slots free of charge; on a first-come, first-served

basis; prohibiting editorial control—and to change

other features that inhibited their ability to achieve

32

the goal of functioning as the proverbial “electronic

soap box.” Specifically, the City found the private cable

company’s administration of the public access channels led them to be underfunded, underpublicized and

underused. Thus, in 1990, in renewing the Manhattan

cable franchises, the City delegated administration of

the public access channels to a private nonprofit community access organization, chosen by the Manhattan

Borough President, that was properly funded, publicized, and uninfluenced by either the cable operator or

the City government.

This case demonstrates the importance, in our federal system, of our state and local governments retaining the freedom to experiment on matters of public

concern. Nearly a half-century ago, New York City embarked on the freedom enhancing experiment of designating Manhattan’s public access channels as public

forums, and it continued that experiment in 1990 when

it renewed the cable franchise agreements and delegated the administration of the public forum public access channels to a private nonprofit. Its decision

deserves respect.

------------------------------------------------------------------

33

CONCLUSION

The Court should affirm the judgment entered below.

Respectfully submitted,

ELLIOT DOLBY SHIELDS

ILYSSA S. FUCHS

ROBERT RICKNER

NEW YORK COUNTY LAWYERS ASSOCIATION

14 Vesey Street

New York, New York 10007

CAROLYN A. KUBITSCHEK

Counsel of Record

LANSNER & KUBITSCHEK

325 Broadway, Suite 203

New York, New York 10007

(212) 349-0900

ckubitschek@Lanskub.com

Counsel for Amicus Curiae

January 18, 2019