Petition for Writ of Certiorari — Caprotti v. Town of Woodstock

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Supreme Court, U.&,

(0) FILED

99136 1 FEB 1 5 1999

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

October Term 1999

ELIZABETH CAPROTTI,

Petitioner,

TOWN OF WOODSTOCK et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of New York

PETITION FOR A WRIT OF CERTIORARI

RICHARD A. ALTMAN

Counsel for Petitioner

JOSEPH R. DeMATTEO

DeCONCINI McDONALD ~— Counsel of Record

YETWIN & LACEY 99 Park Avenue, 25" Floor

Co-Counsel for Petitioner New York, New York 10016

233 Constitution Ave., N.E. (212) 986-7714

Washington, D.C. 20002

(202) 546-6900

QUESTIONS PRESENTED

In 1992, Congress enacted the Cable Television Consumer

Protection and Competition Act, P.L. 102-385, 106 Stat. 1460.

Section 635A(a) of that Act, codified at 47 U.S.C. § 555a(a),

reads as follows:

In any court proceeding pending on or initiated after

October 5, 1992, involving any claim against a fran-

chising authority or other governmental entity, or any

official, member, employee, or agent of such authority

or 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 fran-

chise, any relief, to the extent such relief is required by

any other provision of Federal, State, or local law, shall

be limited to injunctive relief and declaratory relief.

1. Does 47 U.S.C. § 555a(a) pre-empt, under the Suprem-

acy Clause, a private individual’s State common-law tort claims

for money damages against a franchising authority, arising from

a program producer’s repeated defamation of her, broadcast

over a public access cable television station which the authority

operates?

2. Does a franchising authority’s willful refusal to stop a

public access programmer’s defamatory broadcasts, despite the

authority’s rules and regulations prohibiting it, and despite

petitioner’s repeated complaints about the broadcasts, constitute

“the regulation of cable service” within the meaning of 47

U.S.C. § $55a(a)?

3. Does 47 U.S.C. § 555a(a) affect any of the rights of

private persons who are not participants in the cable television

industry?

PARTIES TO THE PROCEEDING

The petitioner is Elizabeth Caprotti, for herself and on behalf

of her three minor sons, Dylan, John and Matthew Caprotti.

She was the plaintiff in the proceedings below.

The respondents are all of the defendants below, except for

defendant Ronald Rybacki, against whom 4 default judgment

was entered on July 9, 1996.' The claims against him were

severed and the action against the remaining respondents

proceeded. The respondents are the Town of Woodstock, New

York; all of the individual members of its Town Board, named

Dale Hughes, Tracy Kellogg, John Mower, Lucille Schecter and

Rebecca Wilber, the Woodstock Public Access Committee and

all of its individual members, named Barbara Ghebreselassie,

Elliot Landy, Sonia Malkine, Lance Smith and Peter Zeissner,

and Kay Talbot, the manager of the Woodstock Public Access

Cable Television Station.

Unless the context requires otherwise, “respondents” hereinafter

refers to all of the defendants below except for Rybacki.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .....-----0 0252000

PARTIES TO THE PROCEEDING .......------ +5 i

TABLE OF AUTHORITIES .......----: 222220555 vi

PETITION.FOR A WRIT OF CERTIORARI... -

OPINIONS BELOW ........--.2220000eessst

JURISDICTION ......-.----- +>: hee

CONSTITUTIONAL PROVISIONS, STATUTES ‘

AND REGULATIONS INVOLVED .......------5- >>

STATEMENT OF THE CASE ....-.----------0000 7:

THE PRESENT ACTION ......--------:eccrrtc

The Decisions of the Ulster County Supreme Court ...

The Decision of the Appellate Division,

Thiet Department... eee

The Decision of the Court of Appeals .....------->

Judge Levine’s Dissent .....---.----- +2500 >>

REASONS FOR GRANTING THE WRIT .....------ 12

POINT I:

DEFAMATION CLAIMS BY PRIVATE PERSONS NOT

ARISING FROM MATTERS OF PUBLIC CONCERN

IMPLICATE NO FEDERAL OR FIRST AMENDMENT

INTERESTS. PROTECTION OF REPUTATION IN SUCH

CASES IS OF THE HIGHEST STATE INTEREST.... 14

POINT II:

THE COURT OF APPEALS HOLDING CONFLICTS WITH

THIS COURT’S WELL-ESTABLISHED PRINCIPLES OF

Oi ARPT, o.oo ce on es ee ee eae EE 18

POINT III:

THE FEDERAL GOVERNMENT'S REGULATION OF

CABLE TELEVISION IS NOT EXCLUSIVE, AND STATE

AND FEDERAL LAW DO NOT CONFLICT. THUS THERE

1S NEITHER FIELD PRE-EMPTION NOR CONFLICT PRE-

IIS 5 gg hes canted) BR eRe ROR Ne ee 2]

POINT IV:

THE MAJORITY HOLDING DENIES PETITIONER EQUAL

PROTECTION OF THE LAWS, BECAUSE IT CREATES A

DISTINCTION WITHOUT A RATIONAL BASIS. .... 23

POINT V:

THE MAJORITY’S INTERPRETATION OF § 55Sa(a)

CONFLICTS WITH TWO U.S. CIRCUIT COURT CASES,

AND THE STATUTE’S LIMITED PURPOSE ....... 25

POINT VI:

COPLIN SUPPORTS PETITIONER, BECAUSE IT HOLDS

THAT DEFAMATION ON A PUBLIC ACCESS STATION

ee ee s,s er eee er ert ee 27

ce 8 ae Srey te keene eine heey By 30

TABLE OF AUTHORITIES

U.S. SUPREME COURT CASES

Arkansas Educ. Television Commn. v. Forbes,

WPS UTS. GOB (IONE) nw i ee esas 28

Braxton v. United States, 500 U.S. 344 (1991) ........ 13

Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v.

Hadson. 475 U.S. 292 (1986) .. 0s. cee cnn. 13

Cipollone v. Liggett Group, 505 U.S. 504 (1992) ... 18, 19

Denver Area Educational Telecommunications Consortium,

fo oe F.C. C.. SIGUS. Tai CIPRO)... we es 23, 28, 29

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

ee PORTION ice eke eee ee 17, 21

English v. General Electric Corp., 496 U.S. 72 (1990). . 20

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) 9, 18, 19

Gert: v. Robert Welch, Inc., 418 U.S. 323 (1974) 15, 17, 20

Hawauan Airlines, Inc. v. Norris, 512 U.S. 246 (1994) .. 18

Jones v. Rath Packing Co., 430 U.S. 519 (1977) ....... 20

Kosydar v. National Cash Register Co., 417 U.S. 62 (1974)

re rrr rs os ee ees a 14

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ... 12, 18, 19

New York Times v. Sullivan, 376 U.S. 254 (1964) 14, 15, 17

vii

Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974) .. 12

Retail Clerks v. Schermerhorn, 375 U. S. 96 (1963) .... 20

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) ... 20

William E. Arnold Co. v. Carpenters District Council, - i

ee A ORI ok oe iy oe ee eee eben eee a 12

OTHER FEDERAL CASES

AMSAT Cable Ltd. v. Cablevision of Connecticut Limited

Partnership, 6 F.3d 867 (2™ Cir.1993). .............. 21

Cable Television Association of New York, Inc. v. Finneran,

oe 2 eg | 21, 22

Coplin v. Fairfield Public Access Television Committee, 111

Poe 1SOS CeO. GBT) ©... oe ee ce ann 8, 11, 26-28

Daniels Cablevision, Inc. v. United States, 835 F Supp. 1

(D.C.D.C. 1993), aff'd sub nom. Time Warner Entertainment

FS tt ae k,n ree ena 26

Goldberg v. Cablevision Systems Corp., 69 F .Supp.2d

PO RE CSOD oon vans we cea eo eda chee 29

Jersawitz v. People TV, U.S.Dist.Lex. 16274

rE ieee ae a es 28

Jones Intercable of San Diego, Inc. v. City of Chula Vista,

80 F.3d 320 (9th Cir.1996) ....... 2... 24, 25

Loce v. Time Warner Entertainment Advance/

Newhouse Partnership, 191 F.3d 256 (2™ Cir.1999) . 29, 30

Vill

McClellan v. Cablevision of Connecticut, Inc.,

ee a Gs 6 i Sve es 29

State of Texas v. Synchronal Corp., 800 F.Supp. 1456 —~

of kk. Se aaa errr ee ree cae ae

Storer Cable Communications v. City of Montgomery, Ala. , 806

Pe Be ee Do le oo es ee eee 22

Time Warner Entertainment Co., L.P. v. F.C.C., 56 F.3d 151

(C.ADC. 1995), covt.dem. S16 U.S. 112 sos... wi. 22

Time Warner Entertainment Co., L.P. v. Federal Communica-

tions Commn., 93 F.3d 957, reh. en banc den. 105 F.3d 723

ME Goo saa Weal at ore ee ere SORES 25

STATE CASES

Cablevision of the Midwest, Inc. v. Gross, 639 N.E.2d 1154, 70

Ohio St.36 541 (1994)... .. «cee eee eee: 22

Caprotti v. Town of Woodstock, 256 A.D.2d 978, 681 N.Y.S.2d

911 (3 Dept.1998), mot for lv. granted, 93 N.Y.2d 805, 689

N.Y.S.2d 429, aff'd 94 N.Y.2d 73, 699 N.Y.S.2d 707 (1999)

Data eats Ais arise ee ae Se eee Ca eae a a i

Medlock v. Leathers, 842 S.W.2d 428, 311 Ark. 175 (1992),

RN Pe cn el no cen Subuw eb tiwawe bes 22

Town of Norwood v. Adams-Russell Co., Inc., 519 N.E.2d 253,

See ET COU. eo dhe oo ee ew keane 22

Youmans v. Smith, 153 N.Y. 214 (1897). ............ 15

CONSTITUTIONAL PROVISION

U.S. Const., Art. VI, cl.2 ..........- Cue. 18

FEDERAL STATUTES

OEE eS Sk ce ees 2

MR ES: ks eee 8, 11, 28

oe re pe ec eet 13

ER BS | ss eee 21

RE BOM ioe eae 13, 26

Te en arse ree 30

WC cath jenn ocr eenees 29

UE BOE ooh lo sh ee 29

WUE OO is eS 29

WOU I ni i ee te ss 29

ES Ae ee 29

MU CM Aes 10

ME Bon is Ce ce ts ts 25

47 U.S.C. § 555a(a)............. i, 3, 5-12, 15, 21, 23-28

gh oe oe oer rare se 21

STUDD OOM foc ki nies ete ee ie

GUT EC BIR 6 nnn See cae at 14

OTHER AUTHORITIES

IRATE OC CAM MOOS ....6ok es eek ee 13

136 Cong. Rec. H6530 (daily ed. July 23,1992) ....... 25

Annot., Defamation by Radio or Television, 50 A.L.R.3d 1311

re eee re ey Py eas. 15

IN THE

Supreme Court of the United States

October Term 1999

ELIZABETH CAPROTTI,

Petitioner,

TOWN OF WOODSTOCK et al.,

Respondents.

ooo ooooeee0SooooOoOoo

On Petition for a Wnt of Certiorari to the

Court of Appeals of the State of New York

eR:

PETITION FOR A WRIT OF CERTIORARI

Petitioner Elizabeth Caprotti, on behalf of herself and her

three minor sons, respectfully petitions for a writ of certiorari to

review a judgment of the Court of Appeals of the State of New

York, entered November 18, 1999

OPINIONS BELOW

The Court of Appeals affirmed by a divided court an order

of the New York Supreme Court, Appellate Division, Third

Department, entered December 24, 1998. That order affirmed

two orders of the Ulster County Supreme Court, entered May

14 and June 30, 1997, which granted respondents’ motion for

summary judgment and denied petitioner’s motion for reargu-

ment and renewal.

The Court of Appeals majority and dissenting opinions are

reported at 94 N.Y.2d 73 and 699 N.Y.S.2d 707. The Appel-

late Division, Third Department opinion is reported at 256

A D.2d 978 and 681 N.Y.S.2d 911. The opinions of the Ulster

County Supreme Court are not reported. All. of the opinions are

reprinted in the appendix to this petition, at la-22a”

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a),

in that the final judgment under review was rendered by the

highest State court in which a decision could be had, and the

sole question raised is the validity of a “right, privilege, or

immunity... specifically set up or claimed under the Constitution

or the statutes of...the United States. /d.

The decision is final, in that it disposes of all claims between

the petitioner and the respondents. This petition is timely, being

filed within 90 days of the entry of the final judgment on

November18, 1999. The judgment is thus within this Court’s

jurisdiction and is reviewable by writ of certiorari.

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED

Pertinent provisions of the United States Constitution, the

Cable Communications Policy Act of 1984, the Cable Television

Consumer Protection and Competition Act of 1992 (collectively

> References denoted “a” are to pages in the appendix.

“the Cable Acts” and codified in Subchapter V-A of Title 47,

U.S.C.), and the regulations of the Town of Woodstock Public

Access Committee, are set forth in the appendix, at 23a to 32a.

The statute at issue, 47 U.S.C. § 55Sa(a), is set out in full on the

first page of this petition, the Questions Presented.

STATEMENT OF THE CASE

This is a State common-law tort action for defamation,

negligence and the intentional infliction of emotional distress.

The facts are completely undisputed.

Petitioner Elizabeth Caprotti is a hairdresser who owns and

operates her own salon in Woodstock, New York. She lives

there with her three teen-aged sons. Between 1991 and 1995,

one Ronald Rybacki produced a program on Woodstock’s local

public access cable television station, broadcasting live on

Mondays from 10 p.m. to midnight. During those years, often

since then, and even as this petition was being prepared, he

engaged in a near-weekly series of false and defamatory verbal

attacks upon her and her sons, usually in abusive, vicious and

indecent language.

The station is owned by non-party Kingston Cablevision,

Inc., and operated by the respondent Town of Woodstock,

pursuant to a 1986 franchise agreement between them. The

station is managed by the respondent Woodstock Public Access

Committee (““WPAC’”) and its individual members, who are

appointed by the Woodstock Town Board. They control access

to and programming on the station.

Among other statements, Rybacki said on his programs that

petitioner was “a liar,” “sick and evil,” “a drug addict,” “a

bisexual,” “sexually twisted,” “capable of murder,” and that

“[e]veryone should boycott” her place of business. He also said

that she “sticks a needle in her arm,” that “she likes to seduce

you, then murder you,” and that “Elizabeth sick fucking Caprotti

you know what you can do? You can take your scissors and

shove them up your sick fucking ass. That's what you can do

with them.” Of petitioner’s son John, Rybacki said that he

“provokes trouble and is a troubled kid. He has problems in

school.” Rybacki also said, “I will be talking about this for-

ever.”

These false, defamatory and scurrilous utterances were

broadcast to the entire community in which petitioner and her

sons live and work, and were devastating to their reputations

and emotional well-being. People questioned her regarding the

truth of the broadcasts, her sons were taunted in school, and her

business was adversely affected. She was questioned as to

whether she had AIDS.

Criminal harassment proceedings were brought against

Rybacki, and petitioner obtained an order of protection pro-

hibiting him from discussing her on the program, but he contin-

ued to do so.

Shortly after the broadcasts began, petitioner approached

the chairman of the Woodstock Town Board, respondent John

Mower, and asked him to take action to stop Rybacki’s defama-

tory programs He refused. Thereafter, she repeatedly remon-

strated with other respondent town officials to remove Rybacki

from the air, or at least to prevent him from speaking about her

and her children.

However, despite her increasingly frequent and urgent

requests for help from the respondents; despite WPAC’s regu-

lations prohibiting broadcasting of libel and slander (32a);

- despite other programmers having been disciplined and removed

from the air for far less serious improprieties; and despite their

full knowledge of Rybacki’s ongoing defamation and its grave

effects upon petitioner and her family, the respondents willfully

refused to take any action to stop it.

In March 1995, the matter was reported in 7he Woodstock

Times, the local newspaper. The article quoted Rybacki as

saying of petitioner, “[s]he has a death wish. Something is

going to happen to her” and “[mJaybe I hate her and want to kill

her.” (34a). The article also said that he “equates his situation

with the persecution of the Jews under the Nazis.” (36a). The

entire article is reprinted at 33a to 37a.

THE PRESENT ACTION

On July 1, 1995, petitioner, on behalf of herself and her

three minor sons, commenced a State common-law tort action

against Rybacki, the Town of Woodstock, the WPAC and all of

their individual members, in the New York Supreme Court,

Ulster County. The complaint contained seven causes of action,

for defamation, negligence and the intentional infliction of

emotional distress, and it demanded compensatory and punitive

damages and an injunction against further defamation. The

respondents answered but Rybacki did not, and a default

judgment was entered against him on July 19, 1996.

Respondents have never disputed throughout this litigation:

* The defamatory nature of Rybacki’s utterances;

* The facts and circumstances of their publication;

* That they knew of the broadcasts:

* That they provided the means by which they were broadcast:

* That they refused to remove Rybacki from the air, or to stop

him from speaking about petitioner and her sons, although they

had the right and the power to do so:

* That WPAC’s regulations prohibited the broadcasting of libel

and slander on the public access channel:

* That they were “publishers” of the defamatory statements

under New York common law, and would otherwise be jointly

liable to petitioner.

On January 6, 1997, the respondents moved for summary

judgment dismissing the complaint, on the sole ground that 47

U.S.C. § 555a(a) was a complete defense to petitioner’s claims.

Petitioner cross-moved for summary judgment in her favor.

Respondents raised no other defenses to liability.

The Decisions of the Ulster County Supreme Court

On May 12, 1997, the Ulster County Supreme Court

granted respondents’ summary judgment motion and denied

petitioner's cross-motion, stating:

The actions of such Defendants with respect to the

conduct of Defendant Ronald Rybacki here complained

of. come completely within the purview of 47U. S.C.A.

§55a in that it protects such Defendants with respect to

any claim made against them in circumstances such as

are here involved and limits the relief to injunctive relief.

Inasmuch as Defendant Ronald Rybacki is no longer

broadcasting with Woodstock Public Access Cable Tele-

vision Station, no further relief can be afforded to

plaintiffs. (20a).

Petitioner then moved for reargument and renewal, because

the Court had not addressed Rybacki’s default, and because the

respondents had allowed him to return to the air and he was

continuing to defame the petitioner. On June 30, 1997, the

Court adhered to its prior determination. (21a).

Petitioner appealed from both orders to the Supreme Court,

Appellate Division, Third Department. The appeal was heard on

November 9, 1998.

The Decision of the Appellate Division, Third Department

On December 24, 1998, the Appellate Division unanimously

affirmed the lower court (17a-19a). It said in pertinent part

[P]laintiffs’ 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

regulation governing the station's operation. Although

plaintiffs’ 1" Amendment nghts were not abridged by

defendants, the statute should nonetheless 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 USC § 555a applies to “any claim.”

Accordingly, we conclude that plaintiffs may not seek

monetary damages from the Town or WPAC. (19a).

The Decision of the Court of Appeals

Petitioner then moved for leave to appeal to the Court of

Appeals, New York's highest Court. The motion was granted

on April 6, 1999°. The appeal was heard on September 15,

1999 and the Court issued its decision on November 18, 1999.

In a split 5-1 decision, the Court of Appeals affirmed the

Appellate Division, on the sole ground that 47 U.S.C. § 555a(a)

was a complete defense and pre-empted petitioner’s claims. The

majontty stated in pertinent part as follows.

The issue before us is whether plaintiffs’ tort claim.

which is predicated on the municipal defendants’ deci-

sion to allow Rybacki to continue broadcasting defama-

tory speech, “aris[es] from the regulation of cable ser-

vice” and is therefore defeated by the immunity provi-

sion.

By its plain and unconditional terms, § 555a (a)

grants a local municipality broad immunity from mone-

tary liability that arises out of “any” of the municipality's

regulatory decisions involving cable television. We hold

that the municipal defendants made a regulatory decision

when they allowed Rybacki to continue on the air in the

* 93 N.Y.2d 805, 689 N_Y.S.2d 429

face of persistent complaints. Although we are mindful

of the undisputed defamatory nature of Rybacki’s broad-

casts, our role is not to decide whether the municipal-

ity’s decision was a good one, our focus is limited to

whether the municipality “regulat[ed]” cable service, and

we conclude that it did.

By statutory grant, the municipality is vested with

authority to address allegedly defamatory programming.

Based on that authority, the municipality promulgated

what it aptly called “Regulations.” By deciding to

permit Rybacki to continue his broadcasts on their

public access channel, the municipal defendants were

engaged in “regulation” of cable service to no less a

degree than had they stopped him.

Nothing in § 555a (a)’s legislative history diminishes

the breadth of the immunity conferred by the statute's

plain terms...1f Congress was concerned exclusively with

immunity from suits by aggrieved cable operators, it

would not have deliberately enacted the additional

immunity from any claims “arising out of the regulation

of cable service.”...

We.. rest our determination on the plain language of

§ 555a (a)... [which] leaves no room for guesswork or

interpretation. Preemption is not implied; it is express.

(5a-6a)(footnotes, citations and quotation marks omitted).

The majority cited Coplin v. Fairfield Public Access

Television Committee, 111 F.3d 1395 (8" Cir. 1997), which held

that § 555a(a) barred a public access program producer from

recovering money damages on a 42 U.S.C. § 1983 claim,

against a franchising authority which had removed him because

of his defamatory broadcasts. The majority said that there was

“no meaningful distinction between Coplin and the case at bar.

If cable television may be likened to a faucet of public informa-

tion, one regulates the faucet no less by deciding to let it run

than by turning it off.” (7a).

see See er

Judge Levine’s Dissent

Judge Howard Levine wrote a lengthy and closely argued

dissenting opinion which is difficult to summarize briefly. He

said that it was undisputed that respondents had the right to

remove Rybacki in response to petitioner’s repeated requests,

and that their refusal to stop his “constitutionally unprotected

expressions” caused petitioner to suffer “personal anguish,

public humiliation and economic loss of beauty shop clientele

from his televised attacks over that lengthy period.” (8a).

The dissent then said that:

1. The majority had “ignore[d] principles of statutory

interpretation the Supreme Court has imposed in applying the

Supremacy Clause”;

2. The finding of express pre-emption was “contrary to

United States Supreme Court canons of construction in this

sensitive area of constitutional federalism”;

3. The majority’s “expansive reading of section 555a (a)

finds no support in the legislative history” and Congress did not

intend to pre-empt common-law tort remedies within the

historic police powers of the State,

4. The absence of any explicit reference to common-law

actions in the statute meant that there was no express pre-

emption; .

5. The statute was “manifestly far from plain, and its

ambiguity works heavily against preemption.” (9a-1 la).

The dissent further said that “[t]Jaken literally, plaintiffs’

damage claims do not ‘arise[] from the regulation of cable

service.’ Rather, their injuries arose from the absence of defen-

dants’ regulation of Rybacki’s defamatory expressions,” and

that this Court, in Freightliner Corp. v. Myrick, 514 U.S. 280,

had “specifically rejected the contention that the absence of

regulation itself constitutes regulation,” (lla, emphases in

original). —

The dissent further said that § 555a(a) did not apply to

damage claims “by private individuals who are not themselves

subject to regulation by a franchising authority.” (12a). More-

over, the franchising authority had:

some power to regulate the content of all cable pro-

gramming through the franchise agreement and their

regulations respecting “cable services [that] are obscene

or otherwise unprotected by the Constitution” (47

U.S.C. § 544[d][1]). Therefore, to that degree, fran-

chising authorities can also exert regulatory control over

cable television performers, programmers and produc-

ers It is all of these cable industry participants who

section 555a (a) was intended to bar from suing for

damages “arising from [their] regulation” by franchising

authorities, not private parties who are not subject to

any regulation under the Cable Acts. (id. ).

The dissent further said that there was a specific immunity

for cable operators from liability for defamation claims for

public access programs, contained in 47 U.S.C. § 558 (3 1a), but

that the immunity was not given to franchising authorities. The

reason for the distinction was that cable operators were prohib-

ited from exercising any editorial control whatsoever, whereas

franchising authorities had such control so long as they did not

violate the First Amendment

Congress therefore had every reason to leave franchising

authorities accountable in damages for failing to exercise

control over defamations on public access channels. It

is quite apparent that the omission of franchising author-

ities from immunity for defamation liability in section

558 was intentional. The inclusion of cable operators

but omission of franchising authorities in the only

section of the Cable Acts dealing specifically with

immunity from defamation liability adds a powerful

expressio unius est exclusio alterius argument against

the majority’s application of section 555a (a) to give

tie eens

-—

franchising authorities immunity from State defamation

liability. (13a).

The dissent reviewed the Congressional history, including

the differences between the House and Senate bills. Quoting

from the House Report and the Congressional Record, the

dissent said that “the singular purpose of both Houses of

Congress” was “to protect local authorities from being pres-

sured into making unmeritorious franchising decisions by the

threat of expensive damages litigation by cable companies,” and

“to prevent ‘strike’ damage suits against local franchising

authorities by disgruntled persons or corporate entities in the

cable television industry who are subject to franchising decisions

‘or otherwise regulate[d]’ by those municipal authorities.”

(14a). |

The dissent quoted from the other Circuit Court opinions

which had construed § 555a(a)*, and distinguished Coplin,

supra, relied upon by the majority. In Coplin, the plaintiff had

sued under 42 U.S.C. § 1983, but had not asserted any State

common-law causes of action for damages

Thus, the court in Coplin could, if it wished, apply the

plain meaning doctrine to 47 USC § 555a (a), free from

the federalism-based constitutional constraints imposed

by the Supreme Court where, as here, State common-

law remedies are claimed to be superseded. Second,

Coplin was a producer and programmer on the public

access Channel, and as such he was subject to content

regulation by the franchising authority. Thus, dismissal

of his section 1983 damages action was completely

consistent with a reading of section 555a (a) limiting its

application to bar damage suits by persons or entities

* These cases are cited and discussed infra at 25-6

subject to regulation by a franchising authority, and

adversely affected by such regulation. (15a).

Finally, the dissent said that “defendants have completely

failed to demonstrate any clear and manifest purpose of Con-

gress to preempt plaintiffs’ State common-law defamation

damages action.” (16a)(quotation marks omitted).

REASONS FOR GRANTING THE WRIT

| Defamatory speech about private individuals, outside the

context of issues of public interest or importance, has no First

Amendment protection whatsoever. Vindication of the reputa-

tions of defamed private persons by awarding money damages

is within the historical police power of the States, and is a right

entitled to substantial protection.

2. A party asserting Federal pre-emption of State law bears

a heavy burden to overcome the long-standing “presum[ption]

that Congress does not cavalierly pre-empt state-law causes of

action” and “that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Medtronic, Inc. v.

Lohr, 518 U.S. 470, 485 (1996)(citation and quotation marks

omitted)

The majority holding conflicts with “United States Supreme

Court canons of construction in this sensitive area of constitu-

tional federalism,” as the dissent said (9a). That conflict is alone

sufficient reason to grant the writ. See William E. Arnold Co.

v. Carpenters District Council, 417 U.S. 12, 14 (1974)(certio-

rari granted “to decide whether the holding of the Florida

Supreme Court was consistent with the decisions of this

Court”), Pittsburgh v. Alco Parking Corp.,417U S369, 371-

72 (1974)(certiorari granted “[b]ecause the decision appeared

to be in conflict with applicable decisions of this Court ")

Ne NTT

3. Section 555a(a) was intended solely to bar damage suits

brought by cable system operators objecting to regulatory

decisions made by franchising authorities. In 1992, Congress

found that such suits were frustrating its public policy to

encourage the growth and development of cable television in the

nation. 47 U.S.C. § 521 (23a). The statute has nothing to do

with tort claims brought by private individuals who are

unregulated by the Cable Acts, because such claims do not

affect that public policy. The Court of Appeals’ interpretation

conflicts with those of two Federal Circuit Courts and is

contrary to Congressional intent. Such “conflicts among the

United States courts of appeals and state courts concerning the

meaning of provisions of federal law” are “[a] principal purpose

for which we use our certioran jurisdiction.” Braxton v. United

States, 500 U.S. 344, 347 (1991). “The importance of the case,

and the divergent approach of other courts to the issue” are also

sufficient, even without a direct conflict. Chicago Teachers

Union v. Hudson, 475 U.S. 292, 300 (1986)(footnote omitted)

4. The respondents were not engaged in “regulation of

cable service,” when they repeatedly refused for years to stop

Rybacki’s defamatory broadcasts, in willful defiance of their

own regulations forbidding them. They were nothing more than

common-law tortfeasors, defaming a private citizen while they

were operating—not regulating—a public access channel. Thus

the statute does not apply because there was no “regulation.”

5. This Court should clarify the rights of private citizens and

the obligations of franchising authonties regarding the content

of programs on public, educational and governmental channels

In providing for such channels in 1984, Congress wanted to

“provide the widest possible diversity of information services

and sources to the public, consistent with the First Amend-

ment’s goal of a robust marketplace of ideas” H. Rep. No

934, 98" Cong., 2™ Sess. 19 (1984), reprinted in 1984U.S.C.C.

A.N. 4655, 4656 (emphasis added) See 47 USC. § 521(4)

(23a). But defamation, like obscenity, is no part of “a robust

marketplace of ideas.”

6. The Court of Appeals has now deprived private persons

of all right to recover damages for defamation broadcast by a

public access station operated by a municipality. The decision

thus creates equal protection issues, because it makes a

distinction between municipal and private broadcasters (who

remain liable), without any rational basis. The decision also

creates an absolute privilege to defame a private person ad

infinitum, a result Congress surely did not intend. Given New

York’s importance as the nation’s media capital, the Court of

Appeals’ decision will harm defamation plaintiffs throughout the

nation without advancing any countervailing public policy.

7. Congress actually made the broadcasting of defamation

a crime: “Whoever transmits over any cable system any matter

which is obscene or otherwise unprotected by the Constitution

of the United States shall be fined under Title 18 or imprisoned

not more than two years, or both.” 47 U.S.C. § 559 (31a)

(emphasis added). If broadcasting defamation is a crime, the

victims of it are entitled to damages.

8 The case raises “important questions touching the accom-

modation of state and Federal interests under the Constitution”

(Kosydar v. National Cash Register Co., 417 US. 62, 65)

(1974). It is an opportunity to address significant pre-emption

issues at the confluence of cable television, State defamation law

and the Supremacy Clause of the Constitution.

POINT I

DEFAMATION CLAIMS BY PRIVATE PERSONS NOT

ARISING FROM MATTERS OF PUBLIC CONCERN

IMPLICATE NO FEDERAL OR FIRST AMENDMENT

INTERESTS. PROTECTION OF REPUTATION IN

SUCH CASES IS OF THE HIGHEST STATE INTEREST.

Beginning with New York Times v. Sullivan, 376 U.S. 254

(1964), this Court has often addressed the constitutional

limitations on State defamation laws. In Sullivan, it held that

the First Amendment bars defamation claims brought by public

officials in the context of matters of public interest, absent a

showing of actual malice. In Gertz v. Robert Welch, Inc., 418

U.S. 323 (1974), it held that private citizens who are defamed

in that context can recover damages so long as the States do not

impose liability without fault’:

[T}here is no constitutional value in false statements

of fact. Neither the intentional lie nor the careless error

materially advances society’s interest in uninhibited,

robust, and wide-open debate on public issues. They

belong to that category of utterances which are no

essential part of any exposition of ideas, and are of such

slight social value as a step to truth that any benefit that

may be derived from them is clearly outweighed by the

social interest in order and morality....

The legitimate state interest underlying the law of

libel is the compensation of individuals for the harm

inflicted on them by defamatory falsehood. We would

not lightly require the State to abandon this purpose,

for as Mr. Justice Stewart has reminded us, the individ-

ual’s right to the protection of his own good name

reflects no more than our basic concept of the essential

dignity and worth of every human being-a concept at

the root of any decent system of ordered liberty. The

protection of private personality, like the protection of

life itself, is left primarily to the individual States under

> In Gertz, this Court granted certiorari “to reconsider the extent of a

publisher’s constitutional privilege against liability for defamation of

a private citizen.” 418 U.S. at 325. The same consideration justifies

its grant in the present case. Respondents admit that they are

“publishers” under New York common law (Youmans v. Smith, 153

N.Y. 214 [1897]), and would be jointly liable but for § 555a(a). See

Annot., Defamation by Radio or Television, 50 A.L.R.3d 1311.

States under the Ninth and Tenth Amendments. But this

does not mean that the right is entitled to any less

recognition by this Court as a basic of our constitutional

system...

Public officials and public figures usually enjoy

significantly greater access to the channels of effective

communication and hence have a more realistic

opportunity to counteract false statements than private

individuals normally enjoy. Private individuals are

therefore more vulnerable to injury, and the state

muterestinprotecting them ts correspondingly greater.

[A] private individual. has not accepted public office

or assumed an influential role in ordering society He

has relinquished no part of his interest in the protection

of his own good name, and consequently he has a more

compelling call on the courts for redress of injury

inflicted by defamatory falsehood. Thus, private indi-

viduals are not only more vulnerable to injury than

public officials and public figures; they are also more

deserving of recovery. |

For these reasons we conclude that the States should

retain substantial latitude in their efforts to enforce a

legal remedy for defamatory falsehood injurious to the

reputation of a private individual. ...

We hold that, so long as they do not impose liability

without fault, the States may define for themselves the

appropriate standard of liability for a publisher or broad-

caster of defamatory falsehood injurious to a private

individual

418 U S. at 340-347 (citations, footnotes and quotation

marks omitted, emphases added)

In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472

US 749 (1985), this Court went a step further, and held that

defamation of private persons outside the context of issues of

public interest did not raise any First Amendment concerns:

[S]peech on matters of purely private concern is of

less First Amendment concern. As a number of state

courts, including the court below, have recognized, the

role of the Constitution in regulating state libel law is far

more limited when the concerns that activated New York

Times and Gertz are absent ..

The rationale of the common-law rules has been the

experience and judgment of history that proof of actual

damage will be impossible in a great many cases where,

from the character of the defamatory words and the

circumstances of publication, it is all but certain that

serious harm has resulted infact. As a result, courts for

centuries have allowed junes to presume that some

damage occurred from many defamatory utterances and

publications. This rule furthers the state interest in

providing remedies for defamation by ensuring that

those remedies are effective. In light of the reduced

constitutional value of speech involving no matters of

public concern, we hold that the state interest adequately

supports awards of presumed and punitive damages

—even absent a showing of actual malice

472 US. at 759-761 (plurality, citations, footnotes and

quotation marks omitted)

Petitioner's defamation claims thus raise no First Amend-

ment considerations at all. Protection of her reputation is a

substantial right, within the historic police powers of the State

of New York. She is a private person who was repeatedly

defamed, not during discourse on issues of the day as in Gertz,

but as the victim of a deliberate campaign of harassment and

verbal stalking, in violation of an order of protection. The

respondents could have stopped it at once, but instead allowed

it to continue for years, even while this case is being litigated

Petitioner has a powerful claim-indeed the most powerful

defamation claim possible, devoid of any privileges or other

countervailing policy considerations—upon the Courts of the

State of New York to vindicate her grossly sullied reputation

The Court of Appeals’ rejection of petitioner's claims violates

Constitutional principles of federalism and pre-emption, long

established by this Court.

POINT Il

THE COURT OF APPEALS HOLDING CONFLICTS

WITH THIS COURT’S WELL-ESTABLISHED

PRINCIPLES OF PRE-EMPTION.

Federal laws are “the supreme Law of the Land...any Thing

in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const., Art. VI, cl. 2 (23a). In

determining whether State laws are pre-empted by Federal laws,

the question is ultimately one of Congressional intent.

Four recent cases from this Court address Federal pre-

emption of State laws The cases are Medtromic, Inc. v. Lohr,

518 U.S. 470 (1996); Freightliner Corp. v. Myrick, 514 US

280 (1995), Hawaiian Airlines, Inc. v. Norris, 512 US 246

(1994); and Cipollone v. Liggett Group, $05 U.S. 504 (1992).

They establish the following principles:

1. There is a strong presumption against pre-emption of

State common-law causes of action, particularly when they

involve health and safety, the traditional police powers of a

State, or claims which historically were brought in State

common-law courts. Such claims are not to be pre-empted

“unless that was the clear and manifest purpose of Congress.”

Medtronic, Inc., supra, 518 U.S. at 485 (citation and quotation

marks omitted).

6 In the pre-emption context, “State laws” means State common law

as well as positive legislative statutory enactments. See Cipollone v.

Liggett Group. Inc., 505 U.S. 504 at §22 (plurality).

2. Any such pre-emption is to be as narrow and limited as

possible, and any ambiguity in the statute is be construed against

pre-emption. Cipollone, supra, 505 U.S. at 518.

3. Absent express pre-emptive language, State laws will be

impliedly pre-empted only “if Congress intended federal law to

occupy a field exclusively or where state law is in actual conflict

with federal law [or] where it is impossible for a private party to

comply with both state and federal requirements or where state

law stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress.” Myrick, supra,

514 US. at 287 (citations and quotation marks omitted).

In Medtronic, Inc., supra, this Court said:

Although our analysis of the scope of the pre-

emption statute must begin with its text, our interpreta-

tion of that language does not occur in a contextual

vacuum. Rather, that interpretation is informed by two

presumptions about the nature of pre-emption.

First, because the States are independent sovereigns

in our federal system, we have long presumed that

Congress does not cavalierly pre-empt state-law causes

of action. In all pre-emption cases, and particularly in

those in which Congress has legislated...in a field which

the States have traditionally occupied, we start with the

assumption that the historic police powers of the States

were not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.

Although dissenting Justices have argued that this

assumption should apply only to the question whether

Congress intended any pre-emption at all, as opposed to

questions concerning the scope of its intended invalida-

tion of state law, we used a presumption against the pre-

emption of state police power regulations to support a

narrow interpretation of such an express command in

Cipollone. That approach is consistent with both

federalism concerns and the historic primacy of state

regulation of matters of health and safety.

Second, our analysis of the scope of the statute’s

pre-emption is guided by our oft-repeated comment,

initially made in Retail Clerks v. Schermerhorn, 375

U. S. 96, 103 (1963), that “[t]he purpose of Congress is

the ultimate touchstone” in every pre-emption case. As

a result, any understanding of the scope of a pre-emp-

tion statute must rest primarily on a fair understanding

of congressional purpose. Congress’ intent, of course,

primarily is discerned from the language of the pre-

emption statute and the statutory framework surround-

ing it. Also relevant, however, is the structure and

purpose of the statute as a whole, as revealed not only

in the text, but through the reviewing court’s reasoned

understanding of the way in which Congress intended

the statute and its surrounding regulatory scheme to

affect business, consumers, and the law.

518 U.S. at 484-86 (citations and internal quotation

marks omitted; italics in original).

These principles are central to our Constitutional system of

federalism and their scrupulous observance assures the

preservation of that system. See Jones v. Rath Packing Co.,

430 U.S. 519 (1977). Moreover, where pre-emption would

leave injured individuals without any state or federal remedy at

all, a court can find it only in the most compelling

circumstances. See English v. General Electric Corp., 496 U.S

72, 87-90 (1990) (nuclear plant worker’s emotional distress

claim not pre-empted despite extensive Federal regulation of

industry), Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251

(1984)(same; tort claim for radiation injuries: “It is difficult to

believe that Congress would, without comment, remove all

mearis of judicial recourse for those injured by illegal conduct.”’).

Petitioner’s reputation is entitled to substantial protection

pursuant to State law (Gertz and Dun & Bradstreet, supra).

Given the lack of any Congressional intent to pre-empt

defamation suits—or any common-law tort claims—-the Court of

Appeals majority’s holding conflicts with this Court’s pre-

emption cases, and leaves petitioner without a remedy.

POINT Ill

THE FEDERAL GOVERNMENT’S REGULATION OF

CABLE TELEVISION IS NOT EXCLUSIVE, AND

STATE AND FEDERAL LAW DO NOT CONFLICT.

THUS THERE IS NEITHER FIELD PRE-EMPTION

NOR CONFLICT PRE-EMPTION

There is a “fluid and ever-changing balance between state

and Federal authority over cable television.” Cable Television

Association of New York, Inc. v. Finneran, 954 F.2d 91, 97 (2"°

Cir.1992). Congress intended to “establish guidelines for the

exercise of Federal, State, and local authority with respect to the

regulation of cable systems.” 47 U.S.C. § 521(3)(23a). Thus,

there is no basis to infer field pre-emption of petitioner’s claims.

Moreover, 47 U.S.C. § 556(a)(30a) says that “[n]othing in

this subchapter shall be construed to affect any authority of any

State, political subdivision or agency thereof, or franchising

authority, regarding matters of public health, safety, and welfare,

to the extent consistent with the express provisions of this

subchapter.” This is specific language against any pre-emption.

The case law shows the limited Federal role in cable tele-

vision regulation, and the lack of any general Congressional pre-

emptive intent. States and localities can mandate access by

cable operators to apartment buildings,’ impose a gross receipts

’ AMSAT Cable Lid. v. Cablevision of Connecticut Limited

Partnership, 6 F.3d 867, 875-6 (2™ Cir. 1993).

tax,* impose a rate freeze,’ prohibit monopolization,"® prohibit

“infomercials” containing false and misleading advertising,'!

prohibit “negative option billing,” /.e., billing for services not

affirmatively requested by subscribers,'? grant eminent domain

powers,’? and limit “downgrade” charges for customer-

requested reductions in service. '*

Thus, given the historical mix of regulation by Federal, State

and local governments, there is no Federal role so pervasive that

the enforcement of state defamation law is “an obstacle to the

accomplishment of the full purposes and objectives of

Congress.” Finneran, supra, 954 F.2d at 98. Accordingly,

there is neither field nor conflict pre-emption: there is no

Congressional intent to occupy the field exclusively, and it is not

impossible to enforce both state and federal law at the same

time.

* Medlock v. Leathers, 842 S W.2d 428, 311 Ark. 175 (1992).

cert den. 508 U.S. 960.

* Town of Norwood v. Adams-Russell Co., Inc., 519 N_E.2d 253, 401

Mass. 677 (1988).

Storer Cable Communications v. City of Montgomery, Ala., 806

F Supp. 1518 (M.D.Ala.1992).

State of Texas v. Synchronal Corp., 800 F.Supp. 1456

(W.D.Tex.1992).

'> Time Warner Entertainment Co., L.P. v. FE. C.C..56 F.3d 151. 194

(C.A.D.C.1995), cert.den. 516 U.S. 1112.

'* Cablevision of the Midwest, Inc. v. Gross, 639 N.E.2d 1154, 70

Ohio St.3d 541 (1994).

'* Cable Television Association of New York, Inc. v. Finneran, 954

F.2d 91 (2™ Cir.1992).

Se ae

POINT IV

THE MAJORITY HOLDING DENIES PETITIONER

EQUAL PROTECTION, BECAUSE IT CREATES A

DISTINCTION WITHOUT A RATIONAL BASIS.

In Denver Area Educational Telecommunications Consor-

tium, Inc. v. F. C. C., 518 U.S. 727 (1996), this Court ad-

dressed the problem of indecent programming on public access

channels, particularly with respect to children, and noted the

variety of regulatory mechanisms.

Public access channels, on the other hand, are

normally subject to complex supervisory systems of

various sorts, often with both public and private ele-

ments...Municipalities generally provide in their cable

franchising agreements for an access channel manager,

who is most commonly a nonprofit organization, but

may also be the municipality, or, in some instances, the

cable system owner...Access channel activity and

management are partly financed with public funds-

through franchise fees or other payments pursuant to the

franchise agreement, or from general municipal funds

...and are commonly subject to supervision by a local

supervisory board.

This system of public, private, and mixed nonprofit

elements, through its supervising boards and nonprofit

or governmental access managers, can set programming

policy and approve or disapprove particular program-

ming services. And this system can police that policy

by, for example, requiring indemnification by program-

mers, certification of compliance with local standards,

time segregation, adult content advisories, or even by

pre-screening individual programs...Whether these

locally accountable bodies prescreen programming,

promulgate rules for the use of public access channels,

or are merely available to respond when problems arise,

the upshot is the same: there is a locally accountable

body capable of addressing the problem, should it arise,

of patently offensive programming broadcast to children,

making it unlikely that many children will in fact be

exposed to programming considered patently offensive

in that community.

518 U.S. 727 at 761-63 (plurality)(citations omitted).

The protection of the reputations of private persons and

their right to be free of emotional distress are State interests just

as compelling as the protection of children from indecent

material. The “locally accountable body” must be just that, and

must be liable for damage to reputation, whether it acts negli-

gently or, as here, willfully and with deliberate indifference, and

regardless of its legal structure.

It cannot matter whether the body is private, public or has

elements of both, because a defamed person’s right to recover

should not depend upon the nature of the ownership or control

of the station which publishes the defamation. Such a distinc-

tion violates equal protection because it is arbitrary and without

a rational basis.!* The Court of Appeals majority’s interpreta-

tion makes the statute unconstitutional as applied, and such an

interpretation is obviously to be avoided.

'S The equal protection aspects of § 555a(a) were challenged by a

cable system operator in Jones Intercable of San Diego, Inc. v. City

of Chula Vista, infra at 25, 80 F.3d at 327. However, the issue here

is petitioner's equal protection rights, not the cable operator's.

rN ET

POINT V

THE MAJORITY’S INTERPRETATION OF § 555a(a)

CONFLICTS WITH TWO U.S. CIRCUIT COURT

CASES, AND THE STATUTE’S LIMITED PURPOSE.

The Court of Appeals majority’s interpretation of § 555a(a)

conflicts with the uniform interpretations of the Ninth Circuit in

1996, the District of Columbia Circuit in 1996, and the District

Court for the District of Columbia in 1993. All three Courts

held that the sole purpose of the statute was to protect local

franchising authorities from damage suits brought by aggrieved

cable system operators over franchising decisions.

The sponsor of § 555a was Senator and then-Representative

Charles Schumer. He said the following on the House floor:

The amendment is needed to protect local authorities

from being pressured into making unmeritorious fran-

chising decisions by the threat of expensive damages

litigation by cable companies. This is not just a hypo-

thetical threat: In Los Angeles, a multimillion dollar suit

has been filed against the local authority over past

franchising decisions, in an attempt to extort a lucrative

settlement and to influence future franchising decisions

by that and other local authorities.

138 Cong. Rec. H6530 (daily ed. July 23, 1992).

The Courts have said exactly the same thing: “So far as we

can tell, Congress gave local franchising authorities protection

in order to insulate their decisionmaking from the threats of suits

for damages brought by disappointed cable operators.” Time

Warner Entertainment Co., L.P. v. Federal Communications

Commn., 93 F.3d 957, 980, reh. en banc den. 105 F.3d 723

(D.C.Cir.1996)(emphasis added).

In Jones Intercable of San Diego, Inc. v. City of Chula

Vista, 80 F.3d 320 (9" Cir. 1996), the Court said:

Congress found that, prior to passage of section

555a(a), municipalities were facing unexpected and

potentially crippling civil damage liability claims in

relation to their regulation of cable operators. In

response, Congress exempted municipalities from civil

damages liability arising out of the local regulation of

cable services in order to preserve the municipal fran-

chising and regulation scheme envisioned by the [Cable

Communications Policy Act of 1984]. We conclude that

section 555a(a) promotes Congress’s substantial interest

in having municipalities regulate cable operators without

fear of potentially overwhelming damage awards.

80 F.3d 320, 326 (footnote, citation and quotation

marks omitted; brackets in original).

“Congress found that claims against municipalities for civil

damage liability related to their regulatory ¢ activities of the

cable industry were posing a potentially crippling burden on

local governments...Elimination of that exposure is thus

designed to preserve the municipal franchising and regulations

scheme envisioned by the 1984 Act.” Daniels Cablevision, Inc.

v. United States, 835 F.Supp. 1, 11-12 (D.C.D.C. 1993), aff'd

sub nom. Time Warner Entertainment Co., L.P.v. F.C.C., 93

F.2d 957 (emphasis added; quotation marks omitted).

The Court of Appeals majority extended § 555a(a) far

beyond its intended purpose. This petition should be granted so

that this Court can have the final word on the correct interpreta-

tion of the statute.

POINT VI

COPLIN SUPPORTS PETITIONER, BECAUSE IT

HOLDS THAT DEFAMATION ONA PUBLIC |

ACCESS STATION CAN BE REGULATED.

The Court of Appeals majority cited Coplin, supra, 111

F.3d 1395, to support its holding against petitioner. However,

they ignored what the Eighth Circuit went on to say:

[B]ecause Coplin was banned from FPATV for the

content of his show, the actions of the FPATV

Committee and the Council are presumptively invalid.

This presumption is not irrebuttable, however. Our

society, like other free but civilized societies, has

permitted restrictions upon the content of speech in a

few limited areas, which are of such slight social value

as a step to truth that any benefit that may be derived

from them is clearly outweighed by the social interest in

order and morality. Because these limited areas of

speech, which include, for example, obscenity, are of

such slight social value, they can, consistently with the

First Amendment, be regulated because of their

constitutionally proscribable content...We agree that

defamation of a private individual is a form of speech

that can be regulated because of its constitutionally

proscribable content.

Coplin, supra, 111 F.3d at 1401-02 and 1406 (citations,

brackets and internal quotation marks omitted; italics

Original).

Thus, Coplin supports petitioner, because it holds that a

franchising authority can stop the broadcasting of defamation

without liability to the speaker. Thus, the respondents could

have removed Rybacki from the air at any time. Yet they refuse

to this day to do so, and actually claim that he has a First

Amendment right to continue to defame the petitioner.

A public access program producer has a qualified First

Amendment right to speak, albeit not on a public access cable

television station.'"® However, a programmer has no right to

defame a private individual, and a franchising authority has no

right to facilitate and publish the defamation. Coplin holds that

a programmer cannot recover money damages under 42 U.S.C.

§ 1983 when he is removed for defamatory speech.'’ However,

Coplin says nothing about the rights of the person defamed.

The Coplin Court said, “Although we agree that, in most

circumstances, holding up the sexual activities of a specific

private individual to public ridicule is not a legitimate concern

of public interest and that doing so is highly offensive, the

record reveals nothing about the occupants of the residences in

question.” 111 F 3d at 1405. Thus, the Court could not have

addressed the rights of the unknown persons who were de-

famed. The “highly offensive” speech in this case was far worse

than in Coplin, because it defamed an identified individual. To

extend the metaphor likening “cable television....to a faucet of

public information,” no responsible franchising authority would

“let it run” (7a) if the “water” were polluted.

Other cases hold that obscene or defamatory speech on

cable television may be regulated. Loce v. Time Warner Enter-

‘6 In Denver Area, supra, a plurality of this Court said that “[w]e

therefore think it premature to answer the broad [question]...whether

public access channels are a public forum.” 518 U.S. at 742. See the

extensive discussion of the point in Coplin, supra, 111 F.3d at 1402

n. 4 and in Arkansas Educ. Television Commn. v. Forbes, §23 US

666 (1998)(state-owned public television station could exclude inde-

pendent political candidate from debates without violating First

Amendment; station was not a public forum). The question remains

open, and the present case is an appropriate one in which to answer It.

7 See Jersawitz v. People TV, U.S.Dist.Lex. 16274 (N.D.Ga.1999)(§

555a [a] barred programmer’s damage claims arising from criminal

trespass charges; station was not a public forum and did not violate

his First Amendment rights in removing him).

eh OR raed

tainment Advance/Newhouse Partnership, 191 F.3d 256 (2™

Cir.1999), upheld the right of a private cable operator to refuse

to broadcast indecent programs on a leased access channel,

citing 47 U.S.C. § 532(h), which says that a franchising author-

ity can prohibit material that “in the judgment of the franchising

authority or the cable operator is obscene, or is in conflict with

community standards in that it is lewd, lascivious, filthy, or

indecent or is otherwise unprotected by the Constitution of the

United States.” (emphasis added).

Loce involved a leased access channel under § 532, while the

channel here is a public access channel under § 531. However,

cable operators an! franchising authorities have the right to

prohibit constitutionally unprotected speech on both. Compare

§ 531(e)(27a), § 532(h)(27a-28a) and § 544(28a)."*

In McClellan v. Cablevision of Connecticut, Inc., 149 F.3d

161 (2™ Cir. 1998), the Court held that a public access program-

mer had a claim under § 531(e) for being removed from the air

because of his sexually explicit-but not unconstitutionally

obscene—programs. However, the Court refused to adjudicate

the rights of two plaintiffs who had asserted only a night to view

the programs. 149 F.3d at 164n 5"°

'® Cf Goldberg v. Cablevision Systems Corp., 69 F.Supp.2d 398

(E.D.N.Y.1999)(cable operator could prohibit public access program-

mer from offering on air to sell tapes and transcnpts of his programs).

'? The McClellan Court noted the distinction between leased access

channels and public access channels drawn by a plurality of this Court

in Denver Area, supra. The former were created by Congress in

1984, but the latter were creations of state and local governments and

had existed long before then. 149 F.3d at 167. This distinction is

another argument in favor of “locally accountable bodies” having

exclusive control of—and thus responsibility for-public access chan-

nels, and against any implicit Federal pre-emption of claims arising

from their operation.

CONCLUSION

For the foregoing reasons, this petition for a writ of certio-

rari should be granted.

Dated: New York, New York

February 10, 2000

Respectfully submitted,

RICHARD A. ALTMAN

Counsel for Petitioner

JOSEPH R. DEMATTEO

Counsel of Record

99 Park Avenue, 25" Floor

New York, New York 10016

(212) 986-7714

DeCONCINI McDONALD

YETWIN & LACEY

Co-Counsel for Petitioner

233 Constitution Avenue, N.E.

Washington, D.C. 20002

(202) 546-6900

APPENDIX

TABLE OF CONTENTS

Opinion of the New York State Court of Appeals ...... la

Dissenting Opinion by Levine,J. ................ 7a

Opinion of the Appellate Division, Third Department... 17a

Opinions of the Supreme Court, Ulster County ....... 20a

United States Constitution, Article VI, clause2 ....... 23a

Title 47, United States Code (selected sections)....... 23a

Regulations of Woodstock Public Access Committee... 32a

(selected sections)

Article in Woodstock Times, March2, 1995 ......... 33a

Opinion of the New York State Court of Appeals

74 N Y.2d 37, 699 N.Y.S.2d 707 (1999)

Elizabeth Caprotti, Individually and as Parent of John Caprotti,

et al., Infants, Appellants, v Town of Woodstock et al.,

Respondents, et al., Defendant.

Argued September 15, 1999: decided November 18, 1999

Richard A. Altman, for appellants.

Marsha Solomon Weiss, for respondents.

OPINION OF THE COURT

ROSENBLATT, J.

In this common-law defamation action, plaintiffs seek

compensatory and punitive damages against a municipality,

alleging that they were defamed by an independent programmer

on the municipality's public access television channel. The issue

before us is whether 47 USC § 555a (a) immunizes the munici-

pality from liability for monetary damages Under that section,

immunity extends to any claim against a municipality “arising

from the regulation of cable service” We conclude that

plaintiffs’ claim arises from the regulation of cable service, and

therefore uphold dismissal of the complaint against the

municipality.

Facts and Procedural History

Defendant Town of Woodstock (the municipality) granted

non-party Kingston Cablevision, Inc. a franchise for the

construction and operation of a cable television system In the

franchise agreement, Kingston Cablevision agreed to provide

public access capability to the municipality ' The agreement

' In 1984, Congress enacted the Cable Communications Policy Act

(continued...)

further provided that “[rJules and regulations for use of the

public access capability shall be promulgated by [the muni-

cipality].” .

In accordance with that provision, the municipality promul-

gated regulations (the Regulations) and delegated management

of the channel to defendant Woodstock Public Access Commit-

tee (the WPAC), a body consisting of five people chosen by the

municipality’s Town Board. Among the Regulations is a provi-

sion prohibiting the presentation of material that constitutes

libel, slander or invasion of privacy. The municipality's Regu-

lations further provide that “[w]hen program violations are

brought to the attention of the WPAC, it may take such steps

that are necessary to comply with WPAC regulations, and

applicable local, state and federal laws and regulations.”

Shortly after the public access channel began broadcasting,

Ronald Rybacki produced and appeared in his own weekly

television program on its airwaves. Plaintiff Elizabeth Caprotti,

who had briefly dated Rybacki, alleges that he used his program

to wage a vicious campaign of harassment against her by

repeatedly defaming her and her three sons—also plaintiffs in this

action—on television. Plaintiffs assert that despite their com-

plaints to members of the municipality's Town Board and

WPAC, the municipality refused to stop Rybacki’s defamatory

broadcasts, and thereby willfully failed to comply with the

Regulations. The nature of these allegations is not in dispute.

Indeed, Rybacki reportedly was prosecuted criminally for

harassing the plaintiffs, and an order of protection was issued

against him prohibiting him from discussing plaintiffs on the air

'(__ continued)

(Pub L No. 98-549, 98 Stat 2779 ef seq. [codified as amended in

scattered sections of 47 USC]), which expressly permits a “franchising

authority” (i.¢., a local municipality empowered to grant a cable

television franchise) to include in its franchise proposal to a cable

operating company a statement that the municipality reserves channels

for public, educational or government use (47 USC § 531).

Plaintiffs sued the municipality, members of its Town Board,

the WPAC, members of the WPAC, the channel’s station

manager (collectively, the “municipal defendants”) and Rybacki,

seeking compensatory and punitive damages for common law

defamation. Rybacki defaulted, and a judgment was entered

against him. Supreme Court held that 47 USC § 555a (a)

clothed the municipal defendants with immunity from liability for

monetary damages, and the Appellate Division unanimously

affirmed. We agree with the reasoning of the courts below, and,

therefore, affirm.

Statutory Analysis

The Cable Communications Policy Act of 1984 (the “1984

Act”) was the first comprehensive federal statute regulating the

cable television industry. A stated, primary purpose of the

legislation was “to assure that cable communications provide

and are encouraged to provide the widest possible diversity of

information sources and services to the public” (47 USC § 521

[4]). In keeping with that aim, Congress sought to insure that

cable companies devote portions of their systems to program-

ming over which the companies had no editorial control, thereby

providing the public with additional avenues of information (see,

Note, Denver Area Telecommunications Consortium, Inc. v.

FCC And The Public Forum Status Of Cable Access Channels,

63 Brook L Rev 955, 961-62 [Fall 1997]).’

2 A “cable operator,” is the entity that “provides cable service over a

cable system and * * * owns a significant interest in such cable

system” (47 USC § 522 [5]). In the case before us, non-party King-

ston Cablevision, Inc., is a “cable operator.”

In the pleadings and in their brief, plaintiffs refer to the

municipality as the cable operator. If we were to consider the

municipality as the operator, it would not avail plaintiffs, considering

that the municipality as “operator” would be covered by the immunity

provision of section 558, which provides that “cable operators shall

(continued...)

- The 1984 Act furthered the objective by empowering a local

municipality, as franchisor, to require that a cable operating

company establish “public access channels” (i.e., channels that

are operated by the local municipality and are not controlled by

the cable operator).* Congress envisioned that public access

channels would become “the equivalent of the speaker’s

soapbox or the electronic parallel to the printed leaflet” ; (HR

- Rep No. 98-934, 98th Cong, 2d Sess, at 59, reprinted in 1984

US Code Cong & Admin News 4655, 4696).

By placing municipalities in the regulatory arena, however,

the 1984 Act exposed them to numerous lawsuits brought by

cable companies asserting that their First Amendment nights

were violated when they were not awarded municipal cable

contracts (see, S Rep No. 102-92, 102d Cong, 2d Sess at 48-49,

reprinted in 1992 US Code Cong & Admin News 1133, 1181).

Thus, when Congress restructured the 1984 Act and passed the

*(...continued)

not incur * * * liability for any program carried on any [access

channel] * * * unless the program involves obscene material” (47 USC

§ 558). We base our decision, however, on the immunity provision

of § 555a (a).

3 See, 47 USC § 531[b]. The 1984 ‘Act authorizes municipalities to

require cable operators to provide two types of “access channels”: (1)

leased access channels (47 USC § 532), and (2) public access

channels (47 USC § 531). Leased access channels are channels that

cable operators lease commercially to unaffiliated third parties. On

the other hand, public access channels are managed independently by

local municipalities. A local municipality is granted a public access

channel as a quid-pro-quo for the cable operator being allowed to use

the public rights-of-way to construct its cable system (see, Note, 63

Brook L Rev, op. cit., at 960).

Cable Television Consumer Protection and Competition Act’ in

1992, it included § 555a (a), which provides that

“{i]n 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 ofa

franchise, any relief, to the extent such relief is required

by any other provision of Federal, State, or local law,

shall be limited to injunctive relief and declaratory

relief’ (47 USC § 555a [a] [emphasis added].

The issue before us is whether plaintiffs’ tort claim, which is

predicated on the municipal defendants’ decision to allow

Rybacki to continue broadcasting defamatory speech, “aris[es]

from the regulation of cable service” and is therefore defeated

by the immunity provision.

By its plain and unconditional terms, § 555a (a) grants a

local municipality broad immunity from monetary liability that

arises out of “any” of the municipality's regulatory decisions

involving cable television. We hold that the municipal defen-

dants made a regulatory decision when they allowed Rybacki to

continue on the air in the face of persistent complaints.

Although we are mindful of the undisputed defamatory nature

of Rybacki’s broadcasts, our role is not to decide whether the

~ municipality’s decision was a good one; our focus is limited to

whether the municipality “regulat[ed]” cable service, and we

conclude that it did.

By statutory grant, the municipality is vested with authority

to address allegedly defamatory programming (see, 47 USC

§531 [b]). Based on that authority, the municipality promul-

gated what it aptly called “Regulations.” By deciding to permit

4 Pub L No. 102-385, 106 Stat 1460 (codified as amended in scattered

sections of 47 USC).

Rybacki to continue his broadcasts on their public access

channel, the municipal defendants were engaged in “regulation”

of cable service to no less a degree than had they stopped him.

Nothing in § 555a (a)’s legislative history diminishes the

breadth of the immunity conferred by the statute’s plain terms.

We agree that, as plaintiffs point out, the immunity provision

was motivated by the need to protect local franchising

authorities “from being pressured into making unmeritorious

franchising decisions by the threat of expensive damages liti-

gation by cable companies” (see, 138 Cong Rec H6487, H6530

[July 23, 1992]). Indeed, the original provision passed by the

Senate immunized local franchising authorities from monetary

liability solely “in cases where the franchising authorities are

charged with violating a cable operator’s First Amendment

rights arising from actions authorized or required by [the 1984]

act” (HR Conf Rep No. 102-862, 102d Cong, 2d Sess, at 98,

reprinted in 1992 US Code Cong & Admin News 1231, 1280).

The scope of the statute’s immunity was, however, significantly

broadened during the course of the legislative process.

In the end, Congress expanded the Senate’s original

proposed immunity provision by adopting the significantly

broader House amendment. The final version thus extends

municipal immunity to “any claim * * * 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” (see, HR Conf Rep No. 102-862, op.

cit., at 99 [emphasis added]). If Congress was concerned

exclusively with immunity from: suits by aggrieved cable

operators, it would not have deliberately enacted the additional

sphere of immunity from any claims “arising out of the

regulation of cable service.”

The dissent would allow plaintiffs to maintain a defamation

action for money damages, concluding that the nght to such

relief is not preempted by the 1984 and 1992 Acts. We disagree

and rest our determination on the plain language of § 555a (a),

which except for declaratory and injunctive relief, expressly

precludes “any claim against a franchising authority or other

governmental entity * * * arising from the regulation of cable

service * * *.” Unlike the Federal statutes at issue in cases cited

by the dissent, section 555a (a) leaves no room for guesswork

or interpretation. Preemption is not implied, it is express. The

statute unambiguously preempts “any relief, to the extent that

such relief is required by any provision of * * * State, or local

law.”

_ At least one other municipality has successfully invoked

section 555a (a) under facts analogous to these. The Eighth

Circuit Court of Appeals, in Coplin v Fairfield Pub. Access Tel.

Comm. (111 F3d 1395, 1408 [1997]), held that section 555a (a)

immunized a municipality from monetary liability in a lawsuit

arising out of the municipality’s regulatory decision concerning

programming content on its public access channel. In Coplin,

however, the municipality decided to ban, rather than continue,

a program that aired allegedly defamatory statements (see,

Coplin v Fairfield Pub. Access Tel. Comm., supra, at 1400).

Like the municipal defendants here, the municipality in Coplin

was sued because of the manner in which it regulated its public

access channel’s programming (see, Coplin v Fairfield Pub.

Access Tel. Comm., supra, at 1400). For purposes of our

analysis, we see no meaningful distinction between Coplin and

the case at bar. If cable television may be likened to a faucet of

public information, one regulates the faucet no less by deciding

to let it run than by turning it off.

Accordingly, the order of the Appellate Division should be

affirmed, without costs.

LEVINE, J. (dissenting). I respectfully dissent. Defendants

are the Town of Woodstock, its Town Board and Public Access

Committee, and the manager of the Town’s public access cable

television station. They do not contest the allegations of the

complaint that for four years (between 1991 and 1995) Ronald

Rybacki produced and hosted a weekly two-hour television

program on the Woodstock public access cable channel in which

he regularly and repeatedly defamed and vilified in obscene

terms plaintiffs Elizabeth Caprotti and her three sons. Just

within the period of 90 days prior to the filing of plaintiffs’

notice of claim, Rybacki made nine defamatory statements,

characterizing Caprotti as a drug addict and a bisexual, who

even indulged her addiction and sexual practices in the beauty

shop she operates.

Defendants do not dispute that Caprotti repeatedly com-

plained to them about Rybacki’s attacks and remonstrated with

them to take him off the air. Nor is it disputed that defendant

had the legal power, under the Cable Communications Policy

Act of 1984, as amended by the Cable Television Consumer

Protection and Competition Act of 1992 (47 USC §§521- 573)

(hereinafter collectively referred to as the Cable Acts) and the

Public Access Committee’s own regulations promulgated there-

under, to withhold Rybacki’s use of the public access channel

for his constitutionally unprotected expressions (see, 47 USC §

531 [b], [c], Denver Area Educ. Telecommunications Consor-

tium, Inc. v Federal Communications Commn. , 518 US 727,

761-762; McClellan v Cablevision of Connecticut, Inc., 149

F3d 161, 168 [2d Cir]). Nevertheless, defendants concede that

they declined to take Rybacki off the public access channel or

otherwise control his defamatory communications and, thus,

Caprotti was compelled to endure the personal anguish, public

humiliation and economic loss of beauty shop clientele from his

televised attacks over that lengthy period.

Defendants do not contest that, by knowingly enabling

Rybacki to spread his defamatory lies over the Town’s public

access cable channel, they facilitated Rybacki’s publication of

the libels and, therefore, are joint tortfeasors under New York

common-law principles of defamation (see, Youmans v Smith,

153 NY 214, 218-219; Anderson v New York Tel. Co., 35

NY2d 746, 750 (Gabrielli, J., concurring]; see also, Hartmann

v Winchell, 296 NY 296, 304 {Fuld, J., concurring]}).

The majority, however, has accepted the sole defense

advanced here to defeat plaintiffs’ State tort damage causes of

action, that 47 USC § 555a (a), added to the Cable Acts’ statu-

: tory scheme by the 1992 Cable Television Consumer Protection

and Competition Act, immunizes defendants from liability for

monetary damages. Thus, the majority holds that section 555a

(a) of the Cable Acts expressly preempts plaintiffs’ damages

claims. In doing so, the majority ignores principles of statutory

interpretation the Supreme Court has imposed in applying the

Supremacy Clause (US Const, Art VI, cl [2]) in express

preemption cases.” The majority impliedly concedes that its

expansive reading of section 555a (a) finds no support in the

legislative history, merely finding that the legislative history fails

to “diminish{] the breadth of the immunity conferred by the

Statute’s plain terms” (majority opn, at 78 [emphasis supplied]).

It leaves no doubt regarding its exclusive reliance on the plain

meaning doctrine in finding express preemption. “We * * * rest

our determination on the plain language of section 555a (a)”

(majority opn, at 79). The majority supports its ruling with a

Federal Circuit Court decision (Coplin v Fairfield Pub. Access

Tel. Comm., 111 F3d 1395 [8th Cir]) which is demonstratively

distinguishable in two key respects and, if anything, supports the

opposite conclusion. Application of the plain meaning doctrine

to find that Federal law has expressly preempted plaintiffs’ State

tort damage causes of action is, in my view, contrary to United

States Supreme Court canons of construction in this sensitive

area of constitutional federalism. Indeed, in its most recent

major preemption case, Medtronic, Inc. v Lohr (518 US 470),

the Court expressly rejected exclusive reliance on a plain

meaning approach. “Although our analysis of the scope of the

pre-emption statute must begin with its text * * * our

interpretation of that language does not occur in a contextual

* Defendants have not contended and could not contend here that

implied preemption applies, either by way of congressional occupation

of the field or because State tort law conflicts with Federal law (see,

Drattel v Toyota Motor C. orp.,92 NY2d 35, 42). Thus, the sole issue

is express preemption under the Supremacy Clause.

;

10a

vacuum. Rather, that interpretation is informed by two pre-

sumptions about the nature of pre-emption” (id., at 484-485

[emphasis supplied, internal citations omitted]).

Both of the presumptions outlined in Medtronic are directly

applicable here. First, as already discussed, we deal here with

a claim of express preemption of a New York common-law rem-

edy for tortious conduct. The Supreme Court has recognized

that a State common-law tort remedy may well be considered to

fall within the historic police powers of the State (see, C ipollone

v Liggett Group, 505 US 504, 518; Taylor v General Motors

Corp., 875 F2d 816, 823 [11th Cir], cert denied 494 US 1065).

Especially when this is the case, Medtronic teaches that

“iJn all pre-emption cases, and particularly in those in

which Congress has ‘legislated * * * ina field which, the

States had traditionally occupied’ * * * we ‘start with

the assumption that the historic police powers of the

States were not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Con-

gress’” (Medtronic, Inc. v Lohr, supra, at 485 [emphasis

supplied, internal citations omitted]).

This presumption not only applies to militate against a con-

gressional intent to preempt at all, but also to limit and narrow

the scope of any intended supersession of State law (see, id., at

485; Cipollone v Liggett Group, Inc., supra, at $18, 523).

The second proposition articulated in Medtronic is that “‘the

purpose of Congress is the ultimate touchstone’ in every

pre-emption case” (Medtronic, Inc. v Lohr, supra, at 494,

quoting Retail Clerks Intl. v Schermerhorn, 375 US 96, 103).

To discern the existence and the scope of any congressional

intention to preempt State law, a court must look not only at the

statutory language, but the legislative framework, the structure

and purpose of the statute as a whole and a “reasoned

understanding of the way in which Congress intended the statute

and its surrounding regulatory scheme to affect business,

consumers and the law” (Medtronic, Inc. v Lohr, supra, at 486).

lla

Based upon the analysis required by the United States

Supreme Court in a case such as this, defendants have failed to

demonstrate that plaintiffs’ common-law damages remedy for

defamation by these joint tortfeasors was expressly preempted

by 47 USC § 555a (a). The text is manifestly far from plain,

and its ambiguity works heavily against preemption (see,

Cipollone v Liggett Group, supra, 505 US, at 533 [Blackmun,

J., concurring in part with Kennedy and Souter, JJ.]; id., at 548

[Scalia, J., concurring in part with Thomas, J.]):

“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, to the extent such relief is

required by any other provision of Federal, State or local

law, shall be limited to injunctive relief and declaratory

relief’ (47 USC § 555a [a][emphasis supplied]).

Taken literally, plaintiffs’ damage claims do not “arise[] from the

regulation of cable service.” Rather, their injuries arose from

the absence of defendants’ regulation of Rybacki’s defamatory

expressions. The majority overcomes this semantic hurdle by

broadly interpreting the statutory phrase “regulation of cable

service” to include “‘any’ of the municipality's regulatory

decisions involving cable television” (majority opn, at 78),

whereby, then, a decision or to regulate becomes “regulation.”

To bolster its conclusion that regulation includes nonregulation,

the majority interposes the “any” in the statute as a modifier of

“regulation.” While the majority’s expansive interpretation is

not conclusively foreclosed by the text, it certainly is not

compelled. Indeed, the United States Supreme Court, in an-

other express preemption context, specifically rejected the

contention “that the absence of regulation itself constitutes

regulation” (Freightliner Corp. v Myrick, 514 US 280, 286).

Also of significance, while the text of section 555a (a) refers

to “relief * * * required by any other provision of Federal, State

12a

or local law,” there is no specific exclusion of common-law

remedies. “Courts finding no express preemption agree that the

absence of any explicit reference to common-law actions in the

preemption clause leads to ano-express preemption conclusion”

(Drattel v Toyota Motor Corp., supra, 92 NY2d, at 46).

Furthermore, neither the context nor the legislative history

of section 555a (a) supports extending its statutory immunity to

damage claims by private individuals who are not themselves

subject to regulation by a franchising authority. Thus, the

immediately preceding section, 47 USC § 555, gives cable

operators access to the courts to seek relief from various

adverse determinations by franchising authorities. The statutory

scheme of the 1984 Cable Act left the primary means of regu-

lating cable operations, facilities and services in the hands of

local franchising authorities (see, 7Zime Warner Entertainment

Co. v Federal Communications Commn. , 93 F3d 957, 963 [DC

Cir]). Local franchising authorities were given the power to

establish and enforce requirements for facilities and equipment

for the operation of a cable system (47 USC § 544 [b] [1]) and

to regulate cable television service rates for subscribers in the

absence of competition among operators (47 USC § 543 [a]).

Thus, the Cable Acts contemplate or provide for a variety of

regulatory activities by franchising authorities beyond the deter-

mination to grant or deny a franchise to a prospective cable

operator. Franchising authorities are also given some power to

regulate the content of all cable programing through the

franchise agreement and their regulations respecting “cable

services [that] are obscene or otherwise unprotected by the

Constitution” (47 USC § 544 [d] [1]). Therefore, to that

degree, franchising authorities can also exert regulatory control

over cable television performers, programmers and producers.

It is all of these cable industry participants who section 555a (a)

was intended to bar from suing for damages “arising from [their]

regulation” by franchising authorities, not private parties who

are not subject to any regulation under the Cable Acts.

ein a8 Ty

13a

ee Ne eta

Further fortifying the conclusion that 47 USC § 555a (a)

was not intended to preempt State defamation claims is the

provision in a companion section which specifically and

expressly directs that “cable operators shall not incur any such

liability [for defamation] for any program carried on any [public

access] channel * * * unless the program involves obscene

material” (47 USC § 558 [emphasis supplied]). Congress

singled out cable operators, but not franchising authorities, for

immunity from liability for defamations over public access

channels because “the bill otherwise prohibits the operator's

editorial control over all such channels’; (H Rep No. 98-934,

98th Cong, 2d Sess, at 95, reprinted in 1984 US Code Cong &

Admin News 4655, 4732 [emphasis supplied]; 130 Cong Rec

$14285, reprinted in 1984 US Code Cong & Admin News, at

4738 [““The Senate * * * adopts the explanation * * * contained

in House Report 98-934" ]; see, 47 USC § 531 [e]). As already

shown and not disputed, however, franchising authorities are

given the power to assert “editorial control” to prevent defama-

tory communications over public access channels. Congress

therefore had every reason to leave franchising authorities

accountable in damages for failing to exercise control over

defamations on public access channels. It is quite apparent that

the omission of franchising authorities from immunity for

defamation liability in section 558 was intentional. The inclusion

of cable operators but omission of franchising authorities in the

only section of the Cable Acts dealing specifically with immunity

from defamation liability adds a powerful expressio unius est

exclusio alterius argument against the majority’s application of

section 555a (a) to give franchising authorities immunity from

State defamation liability (see, McKinney’s Cons Laws of NY,

Book 1, Statutes § 240).

The legislative history reveals that the congressional intent

behind 47 USC § 555a (a) as originally proposed and finally

enacted was identical. In the onginal Senate version, it was

intended to prevent coercive damage suits under 42 USC § 1983

and State civil rights laws, arising out of “any action expressly

14a

authorized [by law] * * * including a franchising authority's

decision to grant or deny a franchise, renew or not renew a

franchise, to approve or deny the transfer of a franchise, amend

or not amend a franchise, or otherwise regulate a cable

operator” (S Rep No. 102-92, 102d Cong, 2d Sess, at 49-50,

reprinted in 1992 US Code Cong & Admin News 1133,

1182-1183 [emphasis supplied]).

While the subsequently enacted House of Representatives

version of section 555a (a) contains more generalized language

than the Senate bill, the purpose, as articulated by its sponsor,

then Representative Charles Schumer of New York, was the

same: “to protect local authorities from being pressured into

making unmeritorious franchising decisions by the threat of

expensive damages litigation by cable companies” (138 Cong

Rec H6487, H6530 [July 23, 1992)). Thus, the more general-

ized language of the House bill can best be read as intended to

insure that the singular purpose of both Houses of Congress be

effected-to prevent “strike” damage suits against local

franchising authorities by disgruntled persons or corporate

entities in the cable television industry who are subject to

franchising decisions “or otherwise regulate[d]” by those muni-

cipal authorities.

Limiting the scope of statutory immunity from money dam-

age liability to claims asserted by cable operators, producers and

programmers of the cable industry who are subject to regulation

by franchising authorities is consistent with the interpretation of

section 555a (a) by every Federal court that has addressed that

provision. |

“So far as we can tell, Congress gave local franchising

authorities protection in order to insulate their decision-

making from the threats of suits for damages brought by

disappointed cable operators” (Time Warner Enter-

tainment Co. v Federal Communications Commn.,

supra, 93 F3d, at 980 {emphasis supplied)).

1Sa

“We conclude that section 555a (a) promotes

Congress’s substantial interest in having municipalities

regulate cable operators without fear of potentially

overwhelming damage awards” (Jones Intercable v City

of Chula Vista, 80 F3d 320, 326 [9th Cir, emphasis

supplied]).

“Congress found that claims against municipalities for

civil damage liability related to their regulatory acti-

vities of the cable industry were posing ‘a potentially

crippling burden’ * * *. Elimination of that exposure is

thus designed to preserve the municipal franchising and

regulations scheme envisioned by the 1984 Act”

(Daniels Cablevision v United States, 835 F Supp 1,

11-12 [D DC; emphasis supplied]).

Coplin v Fairfield Public Access Television Comm. (supra,

111 F3d 1395), relied upon by the majority, is not to the

contrary. First, the plaintiff in Coplin brought a damage action

under a Federal statute, 42 USC § 1983, allegedly for violating

his constitutional rights to free speech when the talk show he

produced and hosted was suspended by the local public access

television committee for its libelous content. In contrast to the

instant case, the plaintiff in Coplin did not assert any State

common-law cause of action for damages. Thus, the court in

Coplin could, if it wished, apply the plain meaning doctrine to

47 USC § 555a (a), free from the federalism-based constitu-

tional constraints imposed by the Supreme Court where, as here,

State common-law remedies are claimed to be superseded

Second, Coplin was a producer and programmer on the public

access channel, and as such he was subject to content regulation

by the franchising authonty. Thus, dismissal of his section 1983

damages action was completely consistent with a reading of

section 555a (a) limiting its application to bar damage suits by

persons or entities subject to regulation by a franchising

authority, and adversely affected by such regulation.

16a

Since, in my view, defendants have completely failed to

demonstrate any “clear and manifest purpose of Congress” to

preempt plaintiffs’ State common-law defamation damages

action, I vote to reverse and reinstate the complaint.

Chief Judge Kaye and Judges Bellacosa, Smith and Wesley

concur with Judge Rosenblatt, Judge Levine dissents and votes

to reverse in a separate opinion, Judge Ciparick taking no part.

Order affirmed, without costs.

17a

Opinion of the Appellate Division, Third Department

256 N.Y. App. Div.2d 978, 681 N.Y.S.2d 911

White, J.

Appeals (1) from an order of the Supreme Court (Torraca,

J.) entered May 14, 1997 in Ulster County, which granted

certain defendants’ motion for summary judgment dismissing the

complaint against them, and (2) from an order of said court,

entered June 11, 1997 in Ulster County, which denied plaintiffs’

motion for reconsideration.

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.’

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 F3d 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

US 727,759-761).

Congress revisited this field in 1992 when it enacted the

Cable Television Consumer Protection and Competition Act of

1992 (16 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

' Franchising authorities are governmental entities empowered to

grant cable television franchises (47 USC § 522[9]).

| ae

18a

the 1 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 USC § 555a.

Plaintiffs contend that Supreme Court misconstrued 47 USC

§ 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”,

> Plaintiffs have obtained a default judgment against this defendant.

Seaereeeeo re a

19a

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 F3d 1395),

wherein the US Court of Appeals noted that franchising

decisions were not the only concern Congress addressed in

enacting 47 USC § 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 F3d 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 regulation

governing the station’s operation. Although plaintiffs’ 1"

Amendment rights were not abridged by defendants, the statute

should nonetheless 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 authonties In any event, we note

that 47 USC § 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 plaintiffs’ motion for reconsideration

was in reality in motion for reargument, the denial of which

cannot be appealed (see, Spa Realn Assocs. v Spring Assocs.,

213 AD2d 781,783), plaintiffs’ 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

20a

Decision of the Supreme Court of the State of New York,

Ulster County, dated May 12, 1997

PRESENT: HONORABLE JOSEPH P. TORRACA, Supreme

Court Justice.

Upon the foregoing papers, the request of all of the

Defendants in the above captioned matter other than Defendant

Ronald Rybacki, for summary judgment in their favor, 1s

granted.

The actions of such Defendants with respect to the conduct

of Defendant Ronald Rybacki here complained of, come

completely within the purview of 47 U.S.C.A 555a in that it

protects such Defendants with respect to any claim made against

them in circumstances such as are here involved and limits the

relief to injunctive relief Inasmuch as Defendant Ronald

Rybacki is no longer broadcasting with Woodstock Public

Access Cable Television Station, no further relief can be

afforded to plaintiffs.

The complaint is dismissed.

This shall constitute the decision and order of the Court in

this matter All papers submitted on this motion are forwarded

for filing to KERR & WEISS, ESQS,, 15 Plattekill Avenue,

New Paltz, New York 12561.

Dated May 12, 1997

Kingston, New York

s/ JOSEPH P.- TORRACA

Justice of the Supreme Court

2la

Decision of the Supreme Court of the State of New York,

Ulster County, dated June 30, 1997

PRESENT: HONORABLE JOSEPH P. TORRACA, Supreme

Court Justice.

Upon the foregoing papers, Plaintiff's request, for an order

granting reargument and renewal of this Court’s order entered

May 14, 1997, is denied in its entirety. It does not appear that

the court has overlooked or misapplied any controlling principle

of law, nor that it has overlooked its own prior ruling.

On the other hand, there does appear to be a

misunderstanding of the full meaning of the aforesaid decision

with the specific reference to the second to the last sentence

thereof which reads “the complaint is dismissed.” It was the

intention of the Court that such dismissal was with respect to

the movants only. That being the case, the Court had not

overlooked the fact that default judgment had earlier been

granted against Defendant Rybacki and the dismissal of the

complaint at this juncture had no effect on the default judgment .

heretofore granted against Defendant Rybacki.

At this point, the Court will also remind Plaintiff that in

making a motion for reargument or renewal, counsel should

submit with moving papers, a copy ofall of the papers submitted

on motion complained of Fortunately, in this instance, the

absence of such documents does not affect the outcome of the

motion

In sum, the judgment heretofore granted to the Plaintiff

against the defendant, Ronald Rybacki, continues to stand in full

force and effect, but the complaint has been dismissed with

respect to ali of those Defendants who moved for dismissal of

same by virtue of the motion which resulted in the decision of

this Court dated May 12, 1997.

This shall constitute the decision and order of the Court in

this matter. All papers submitted on this motion are forwarded

for filing to. KERR & WEISS, ESQS., Attorneys for

Defendants, 15 Plattekill Avenue, New Paltz, New York 12561.

Dated: June 30, 1997

Kingston, New York

s/ JOSEPH P. TORRACA

Justice of the Supreme Court

23a

STATUTES AND REGULATIONS

United States Constitution

Art. VI, cl. 2

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

Title 47, United States Code

(selected sections)

SUBCHAPTER V-A--CABLE COMMUNICATIONS

Part I—General Provisions

§ 521. Purposes

The purposes of this subchapter are to—

(1) establish a national policy concerning cable communi-

cations;

(2) establish franchise procedures and standards which

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;

(3) establish guidelines for the exercise of Federal, State, and

local authority with respect to the regulation of cable systems,

(4) assure that cable communications provide and are

encouraged to provide the widest possible diversity of

information sources and services to the public;

24a

(5) establish an orderly process for franchise renewal which

protects cable operators against unfair denials of renewal where

the operator’s past performance and proposal for future

performance meet the standards established by this subchapter,

and

(6) promote competition in cable communications and

minimize unnecessary regulation that would impose an undue

economic burden on cable systems.

§ 522. Definitions

For purposes of this subchapter—

(4) the term “cable channel” or “channel” means a portion

of the electromagnetic frequency spectrum which is used in a

cable system and which is capable of delivering a television

channel (as television channel is defined by the Commission by

regulation),

(5) the term “cable operator” means any person Or group of

persons (A) who provides cable service over a cable system and

directly or through one or more affiliates owns a significant

nterest in such cable system, or (B) who otherwise controls or

is responsible for, through any arrangement, the management

and operation of such a cable system,

(6) the term “cable service” means—

(A) the one-way transmission to subscribers of (i) video

programming, or (1i) other programming service, and

(B) subscriber interaction, if any, which is required for the

selection or use of such video programming or other

programming service,

(7) the term “cable system” means a facility, consisting of a

set of closed transmission paths and associated signal

generation, reception, and control equipment that is designed to

7 Pe eet aol yt tisk i Ep cet Ria ee

25a

provide cable service which includes video programming and

which is provided to multiple subscribers within a community,

but such term does not include (A) a facility that serves only to

retransmit the television signals of 1 or more television

broadcast stations; (B) a facility that serves subscribers without

using any public right-of-way; (C) a facility ofa common carrier

which is subject, in whole or in part, to the provisions of

subchapter II of this chapter, except that such facility shall be

considered a cable system (other than for purposes of section

541(c) of this title) to the extent such facility is used in the

transmission of video programming directly to subscribers,

unless the extent of such use is solely to provide interactive

on-demand services; (D) an open video system that complies

with section 573 of this title; or (E) any facilities of any electric

utility used solely for operating its electric utility system,

(10) the term “franchising authority” means any governmental

entity empowered by Federal, State, or local law to grant a

franchise;

(16) the term “public, educational, or governmental access

facilities” means —

(A) channel capacity designated for public, educational, or

governmental use; and

(B) facilities and equipment for the use of such channel

capacity;

(18) the term “State” means any State, or political

subdivision, or agency thereof

§ 531. Cable channels for public, educational or

governmental use

(a) Authority to establish requirements with respect to

designation or use of channel capacity

26a

A franchising authority may establish requirements in a

franchise with respect to the designation or use of channel

capacity for public, educational, or governmental use only to the

extent provided in this section.

(b) Authority to require designation for public,

educational, or governmental use

A franchising authority may in its request for proposals

require as part of a franchise, and may require as part of a cable

operator's proposal for a franchise renewal, subject to section

546 of this title, that channel capacity be designated for public,

educational, or governmental use, and channel capacity on

institutional networks be designated for educational or

governmental use, and may require rules and procedures for the

use of the channel capacity designated pursuant to this section.

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

(d) Promulgation of rules and procedures

In the case of any franchise under which channel capacity 1s

designated under subsection (b) of this section, the franchising

authority shall prescnbe—

(1) rules and procedures under which the cable operator 1s

permitted to use such channel capacity for the provision of other

services if such channel capacity is not being used for the

purposes designated, and

(2) rules and procedures under which such permitted use

shall cease

Se Maratea RD

27a

(e) Editorial control by cable operator

Subject to section 544(d) of this title, 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.

§ 532. Cable channels for commercial use

(a) Purpose

The purpose of this section is 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.

control; restriction on service; determination of rates

(2) A cable operator shall not exercise any editorial control

over any video programming pursuant to this section, or in any

other way consider the content of such programming, except

that a cable operator may refuse to transmit any leased access

program or portion of a leased access program which contains

obscenity, indecency, or nudity and consider such content to the

minimum extent necessary to establish a reasonable price for the

commercial use of designated channel capacity by an unaffiliated

person.

(h) Cable service unprotected by Constitution; prohibition

of offensive programming

Any cable service offered pursuant to this section shall not

be provided, or shall be provided subject to conditions, if such

28a

cable service in the judgment of the franchising authority or the

cable operator is obscene, or is in conflict with community

standards in that it is lewd, lascivious, filthy, or indecent or is

otherwise unprotected by the Constitution of the United States.

This subsection shall permit a cable operator to enforce

prospectively a written and published policy of prohibiting

programming that the cable operator reasonably believes

describes or depicts sexual or excretory activities or organs in

a patently offensive manner as measured by contemporary

community standards.

§ 544. Regulation of services, facilities, and equipment

(d) Cable service unprotected by Constitution; blockage of

premium channel upon request.

(1) Nothing in this subchapter shall be construed as

prohibiting a franchising authority and a cable operator from

specifying, in a franchise or renewal thereof, that certain cable

services shall not be provided or shall be provided subject to

conditions, if such cable services are obscene or are otherwise

unprotected by the Constitution of the United States.

§ 555. Judicial proceedings

(a) Modification or renewal of franchises

Any cable operator adversely affected by any final

determination made by a franchising authority under section

$41(a)(1), 545 or 546 of this title may commence an action

within 120 days after receiving notice of such determination,

which may be brought in-

(1) the district court of United States for any judicial district

in which the cable system is located; or

(2) in any State court of general jurisdiction having juris-

diction over the parties.

———e

(b) Relief

The court may award any appropriate relief consistent with

the provisions of the relevant section described in subsection (a)

of this section and with the provisions of subsection (a) of this

section.

§ 555a. Limitation of franchising authority liability

(a) Suits for damages prohibited

In any court proceeding pending on or initiated after

October 5, 1992, involving any claim against a franchising

authority or other governmental entity, or any official, member,

employee, or agent of such authority or 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, to the extent such relief is

required by any other provision of Federal, State, or local law,

shall be limited to injunctive relief and declaratory relief.

b) Exception for completed cases

The limitation contained in subsection (a) of this section

shall not apply to actions that, prior to such violation, have been

determined by a final order of a court of binding jurisdiction, no

longer subject to appeal, to be in violation of a cable operator’s

rights.

Nothing in this section shall be construed as limiting the

relief authorized with respect to any claim against a franchising

authority or other governmental entity, or any official, member,

employee, or agent of such authority or entity, to the extent

such claim involves discrimination on the basis of race, color,

sex, age, religion, national origin, or handicap.

30a

(d) Rule of construction

Nothing in this section shall be construed as creating or

authorizing liability of any kind, under any law, for any action or

failure to act relating to cable service or the granting of a

franchise by any franchising authority or other governmental

entity, or any official, member, employee, or agent of such

authority or entity.

§ 556. Coordination of Federal, State, and local authority

(a) States, political subdivision, State and local agencies,

and franchising authorities

Nothing in this subchapter shall be construed to affect any

authority of any State, political subdivision, or agency thereof,

or franchising authority, regarding matters of public health,

safety and welfare, to the extent consistent with the express

provisions of this subchapter.

(b) State jurisdiction with regard to cable services

Nothing in this subchapter shall be construed to restrict a

State from exercising jurisdiction with regard to cable services

consistent with his subchapter.

Except as provided in section 557 of this title, any provision

of law of any State, political subdivision, or agency thereof, or

franchising authority, or any provision of any franchise granted

by such authority, which is inconsistent with this chapter shall be

deemed preempted and superseded

(d) “State” defined

For purposes of the section, the term “State” has the

meaning given such term in section 153(v) of this title

a SS Oia Ste CTE

3la

§ 558. Criminal and civil liability

Nothing in this subchapter shall be deemed to affect the

criminal or civil liability of cable programmers or cable

operators pursuant to the Federal, State, or local law of libel,

slander, obscenity, incitement, invasions of privacy, false or

misleading advertising, or other similar laws, except that cable

operators shall not occur such liability for any program carried

on any channel designated for public, educational, governmental

use or on any other channel obtained under section 532 of this

title or under similar arrangements unless the program involves

obscene material.

§ 559. Obscene programming

Whoever transmits over any cable system any matter which

is obscene or otherwise unprotected by the Constitution of the

United States shall be fined under Title 18 or imprisoned not

more than 2 years, or both

32a

Regulations of Woodstock Public Access Committee,

Adopted by the Woodstock Town Board on July 19, 1994

(selected sections)

| STATEMENT OF PURPOSE

Woodstock Public, Education and Government Access cable

television is a non-commercial, voluntary town-wide service

that

(1) furnishes access to local use of programming for the

information and enjoyment of the general public and Woodstock

cable subscribers,

(2) affords local artists, performers and producers an outlet

for creative expression, and

(3) provides a community forum for the exercise of the nght

of free speech

IV REGULATIONS

7 PROGRAM POLICIES AND RULES

A Presentation of the following materials on public access

channel 1s prohibited

2 Material which constitutes libel, slander, invasion of

privacy, violation of trademark or copyright, or which violates

any local, state or federal law

3 Material which has a reasonable probability of creating an

immediate danger of damage to property or injury to persons

B When program content violations are brought to the

attention of the WPAC, it may take such steps that are

necessary to comply with WPAC regulations, and applicable

local, state and federal laws

Sic tice At A cil AE LR MATE PR eRe Pi pee ERs

33a -

WOODSTOCK TIMES

March 2, 1995

Page |

“Dangerous stuff”

Local man uses cable channel to launch

vicious attacks on woman and her family

By Sigrid Heath

“I will be talking about this forever, one way or another.”

With an apparently limitless and obsessive flow of verbiage, Ron

Rybacki wages a campaign of hate and retribution over Wood-

stock’s public access station, Channel 3. His use of the forum

has been termed slanderous, invasive and menacing, and brought

to light a cable committee in disarray and impotent, and a town

board which does not want to pull the plug on Rybacki for fear

of litigation

In a lengthy telephone interview Tuesday, February 28,

Rybacki said he could not claim that what is doing is “healthy,

sane,” and he confessed that “it doesn’t make me feel good”

He characterizes the content of his broadcasts as “deep stuff,

dangerous stuff.” He said he is living on disability benefits, and

so has nothing to do but “read, write and think ”

On Monday nights at 10, Rybacki goes on live with a

rambling, sometimes morbidly fascinating, often repellant [sic]

meditation on narcissism in Woodstock, sex, art, suicide, bio-

energetics and other themes, all of which revolve around and

return always to Elizabeth Caprotti, a Woodstock resident who

runs a hair salon in town Rybacki said that Caprotti, with

whom he was once deeply in love, rejected him and accused him

of molesting one of her children This, said Rybacki, “opened

a can of worms.”

Caprotti alleges the molestation took place five or six years

ago, “maybe longer.” She was new in town, she said, and

34a

lonely. Rybacki told her he was a therapist and she said, “I was

interested in therapy.” According to Caprotti, the relationship

was over within a few weeks, but some months later her eight-

year-old son told her Rybacki had molested him. Caprotti said

the boy did not report it at the time because he said Rybacki had

threatened to hurt her Caprotti told anyone.

Another Channel 3 producer, John Jordan, has come forward

saying Rybacki confessed the alleged incident shortly after

Caprotti reports it occurred and then recanted two days later.

Jordan said he feels lousy about having kept quiet so long, but

that he’s finally “just had enough.”

Rybacki contends Jordan is not telling the truth, and he says

neither is Caprotti. “If she accuses me of child molestation,” he

says, “then I'll tell everyone Liz uses heroin.”

Caprotti believes Rybacki is fueled by a desire to get back at

her. And on the phone, Rybacki said, “Yes, | suppose I want

revenge.” Asked if his intention is to injure Caprotti, Rybacki

said, “Consciously no. Unconsciously? Maybe I hate her and

want to kill her.” On the air Monday night, he told viewers, “I

will never forgive her.” He feels compelled, he said, to talk

about everything he “knows” about her, “every detail.” “She

likes to seduce you, then murder you.” He questions her

motivation in accusing him of child molestation. “She has a

death wish. Something is going to happen to her.”

Caprotti says Rybacki does not limit his actions to the TV

station. She says he has recently “said things” on the street in

a manner which she says makes her concerned for the safety of

her children. She filed the complaint with the police.

Rybacki denies the charge emphatically, saying, “I’m afraid

of her kids. They have power over me.”

Woodstock police Chief Paul Ragonese said he arrested

Rybacki on February 24, charging him with second-degree

harassment, a violation. Wednesday, in Woodstock Town

Court, Rybacki was arraigned on the harassment charges.

Caprotti obtained a temporary order of protection which, among

other restrictions, specifies that Rybacki is not to speak of her

xe PS

CP Lar SARL ELS A wtb IS

» |

}

35a

or mention the case on the air or elsewhere in public. The next

hearing in the case will take place March 8.

This is the second order of protection Caprotti has had. She

first went to the police about five years ago because Rybacki

would follow her children from the bus and “lurked” in her yard,

throwing gravel at her window. He admits that he violated the

court order, but he was not prosecuted

Regarding his treatment of her on the show, Caprotti has

been told the only thing she can do is sue for slander. And that

will only cost her money she doesn’t have. Rybacki, protected

by the First Amendment, can continue to speak on the air, in any

manner that suits him, as long as he is willing to risk being taken

to court.

“It isa very complex, very difficult issue,” observes Stephen

Shaye, director of the division of municipal assistance at the

New York State Cable Commission. Once the town dedicates

a TV channel to public access, the municipality and its agents

are prohibited by federal and state statutes from interfering in

any way with an individual’s right of free speech. The only

control an entity can wield over what someone says on the air,

said Shaye, is to create rules limiting access. The rules must be

“fair, and treatment equal,” and not intended to restrict free

speech.

Rybacki and every other Channel 3 producer sign a

statement agreeing to abide by regulations promulgated by the

Woodstock Public Access Committee and adopted by the Town

Board last July, which prohibit, among other activities, the

presentation of “material which constitutes libel, slander,

invasion of privacy.”

Rybacki repeatedly violates the terms of the agreement.

According to the regulations, he could be suspended by the

station manager for these violations, and would have the nght

to appeal the matter to the access committee, and then to the

Town Board. But the committee is crippled by three vacancies,

leaving only two members, Peter Zeissner and Sonia Malkine.

36a

And station manager Kay Talbot says she has been reluctant to

act in what she perceives as an administrative vacuum.

Meanwhile Rybacki has continued to vilify Caprotti on the

air. She said she’s considered leaving town. Other children in

school taunt her sons, repeating what they’ ve heard Rybacki say

about their mother on TV. Asked why she had let the situation

go on for so long and not file a formal complaint until this week,

she said, “I kept hoping he’d just stop.” When she did look for

guidance, she was disappointed.

“I went to Woodstock town supervisor John Mower in

September,” she said. “He told me to ignore it.” Caprotti

_ continued, “I know I’m ignorant about the law and how to get

things done, but I haven’t gotten very good help.”

She said she called Mower at home late Monday night,

February 27, during Rybacki’s show, telling him, “Right now my

private life is being made public. I’m a private citizen!”

Caprotti said this time Mower said she should get a tape, that he

needed proof. She has done so. And she has a stack of sworn

statements of witnesses to Rybacki’s “abuse” in earlier

broadcasts.

But Mower, in an interview on Monday, said he doesn’t

think the town can do anything at all about Rybacki. “The town

has been told, no matter what you think of it, content of

programming is protected,” Mower said. “Can the town be

sued? Yes.”

The agreement the Channel 3 producers sign indemnifies the

town from any liability arising from claims. But District

Attorney Michael Kavanagh said last week that document

“might not be worth the paper it’s printed on.”

“If the town restricted content, we’d be in court,” said

Mower. “If 1 can’t respond to content, how can I be respon-

sible? This is the uncomfortable part of the Bill of Rights.”

Woodstock attorney Alan Sussman, a Constitutional law

expert, said the law “errs on the side of freedom of speech, but

to tighten up on it would stop the free flow of debate.” Public

figures must take the knocks as part of the territory, a private

i weet FRO Nae Rk

37a

individual can seek relief in court, where the burden is on the

“victim” to prove the allegations untrue.

Town Councilman Dale Hughes, an attorney, said Tuesday,

he must support free speech. “If it’s slander, she should sue

him,” said Hughes. He was unaware of the cable access

committee vacancies.

Does the town have a responsibility to protect private

citizens? Hughes pointed out there’s no prior restraint where

language is concerned.

Jordan read a statement at this week’s Town Board meeting

accusing the board [of] the town of “copping out” by allowing

Rybacki to continue to broadcast and by “hiding behind” its

indemnification. Mower said at the meeting he had “no

response at this time.” On the phone, the supervisor said he

would “seek the wisdom of the town board.”

Prior to his arraignment Wednesday, Rybacki, who equates

his situation with the persecution of the Jews under the Nazis,

said he would continue to say the things he does “because they

tell me I can’t.” He defends his actions, saying, “Am I doing

something evil? 1 don’t think so. Let them all get TV shows of

their own, and say whatever they want to about me. Gossip

should be made public. It’s healthier.” He said he is ostracized

by “the intellectual community,” his life is threatened, and he has

no choice but to do what he is doing.

“I’ve been called a child molester, what’s next? A

murderer? A potential murderer?” Asked if, perhaps sublimin-

ally, he wants someone to stop him, he answered, “No, I want

someone I respect to come to me and say: I know this is painful

for you to do this, but you must continue. I'll help you do it.

If | thought it was destructive, I'd stop. But I don’t think what

I’m doing is destructive.”

But Rybacki said Wednesday, “Maybe now that all this has

come to a head I'll think about it. Maybe I'll stop.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.