Opposition Brief — Noel v. International Cablevision, Inc.

o>) Supreme Court, U.S.

No. 96-219 \" EB OS a

In The SEP 9 1996

Supreme Court of the Hnitd States...

October Term, 1995

> aan

MARVIN NOEL,

Petitioner.

vs.

INTERNATIONAL CABLEVISION, INC. d/b/a ADELPHIA

CABLE,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

RESPONDENT’S BRIEF IN OPPOSITION

WILLIAM G. PRIMPS

Counsel of Record

PETER K. VIGELAND

LORNA McKENZIE

LeBOEUF, LAMB, GREENE

& MacRAE, L.L.P.

125 West 55th Street

New York, New York 10019

(212) 424-8000

RANDALL D. FISHER

ATHENA JAMESSON

INTERNATIONAL CABLEVISION, INC.

d/b/a ADELPHIA CABLE

Five West Third Street

Coudersport, Pennsylvania 16915

(814) 274-9830

Counsel for Respondent

utz

Angels (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

COUNTER QUESTIONS PRESENTED

1. Whether petitioner failed to meet the jurisdictional

requirement of this Court that he file a timely petition for a writ

of certiorari where petitioner neglected to file the petition within

90 days afterentry of the lower court’s judgment, petitioner did

not toll the running of this 90-day period by filing a timely

petition for rehearing in the court below, and petitioner did not

file any motion to extend the time within which to file his petition

for a writ of certiorari in this Court?

2. Whether Section 605 of Title 47, United States Code,

protects cable television operators against the sale and

distribution of “pirate” descramblers used to steal cable

programming services that originate as radio communications

and are retransmitted by cable television operators over coaxial

cable wiring?

ii

STATEMENT PURSUANT TO RULE 29.6

Respondent International Cablevision, Inc. (“International

Cablevision”), a corporation organized under the laws of New

York, is a wholly-owned subsidiary of Chauncey

Communications Corporation (“Chauncey”), a Delaware

corporation. Chauncey is in turn wholly owned by Adelphia

Communications Corporation, a publicly traded Delaware

corporation. Respondent International Cablevision has no

subsidiary company within the meaning of Rule 29.6 of the Rules

of the Supreme Court of the United States.

iii

TABLE OF CONTENTS

Page

Counter Questions Presented ...................... i

Statement Pursuant to Rule 29.6 ................... ii

gE EE On eg ry Pp aren iii

I oe ara nuts Givi eekkbeccicres. iv

PUMPER OU GUNUPUOUION oc. cc ccc ccccccceccunsses l

Additional Statutory Provision .................... l

Counter Statement of the Case ..................... 2

Reasons for Denyingthe Writ ..................... 3

I. The Petition Is Jurisdictionally Defective. ..... 4

II. Petitioner Has Failed To Present Compelling

Reasons That Would Justify The Grant Of A Writ of

EC VEG cea VniweeU KN 6 bb ysdb wa bin es 7

A. The Asserted Conflict Is Tolerable And

Review By This Court Would Be Premature. :

B. The Decision Below Was Correct. ........ 9

DTU TCCGCOCLE siGkawsscccecacetsdncesare 13

iv

Contents

TABLE OF AUTHORITIES

Cases Cited:

Beaulieu v. United States, 497 U.S. 1038 (1990) ......

Bowman v. Loperena, 311 U.S. 262(1940) ...........

Department of Banking v. Pink, 317 U.S. 264 (1942) ...

Federal Power Comm'n v. Idaho Power Co., 344 U.S. 17

ERED dn'datS iu RERE EE Se eee eee eee enere

Hiersche v. United States, 503 U.S.923 (1992) .......

McCray v. New York, 461 U.S.961 (1983) ...........

Missouri v. Jenkins, 495 U.S.33 (1990) .............

Pfister v. Northern Ill. Fin. Corp., 317 U.S. 144 (1942)

oseseeeeeeeeeeereeeeeeeevneeeeeeeeeeeeeeeee ee eevee

Shumar v. United States, 423 U.S.879(1975) ........

United States v. Norris, 88 F.3d 462 (7th Cir. 1996) ....

United States v. Southwestern Cable Co., 392 U.S. 157

CPRGE acc c ca ccudcneeut s cea ends elan concen ces

Walker v. United States, 506 U.S.967 (1992) .........

Page

12

12

Vv

Contents

Page

Statutes Cited:

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FOO RETORE 5.08 bo Sea eae ER haan nek 1,4,5,7

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We BOE a Nei aN we neue ae i, 2,3,8, 10,11, 12,13

CF er ONO 55 ods vide deives uae eas 2,9

£7 VBC. §GOSOKSNCMIMED) onc ccaceesevdsbacce 2

Rules Cited:

Sc, B, SUE kG nk Rae ns th Cub Khe Seunuen 7

Fe er Pe Pe rT er Sen ree 5

Me RCE: ) Kas Sch 45s ened Cee bated Wake eee 4,13

I A eb Kb nkd oes un tae cba rees tAREranS 4,5

GR BEF Sg We wets cn onsaiieh suked bee eutees 4,7

vi

Contents

Page

Other Authorities Cited:

House Report No. 934, 98th Cong., 2d Sess. 83 (1984),

peprinied tats BCA. AI CESS svcccuvceseessaea 10

Justice Brennan, Some Thoughts on the Supreme Court's

Workload, 66 Judicature 230 (1983) .............. 9

Justice Stevens, Some Thoughts on Judicial Restraint, 66

POGRCRIING TTT CIDEE) 5 6k cknvkcdcteadnstesrces 9

APPENDIX

Appendix A— Notice of Motion Filed March 7, 1996 .. R.A. 1

Appendix B — Order Filed March 29, 1996 .......... R.A.5

l

STATEMENT OF JURISDICTION

Section 2101(c) of Title 28, United States Code, invests this

Court with jurisdiction provided a petition for a writ of certiorari

is filed within 90 days of the entry of the judgment below. The

judgment of the Court of Appeals for the Second Circuit was

entered on January 26, 1996 and the mandate issued on February

16, 1996. On March 1, 1996, more than 14 days following the

entry of the judgment, petitioner belatedly submitted a petition

for rehearing, which the clerk in the court below rejected as

untimely. After petitioner filed a motion, dated March 7, 1996,

for an extension of time within which to file his petition for

rehearing, the Second Circuit, by order dated March 29, 1996,

granted this out-of time motion “to the extent that the petition for

rehearing may be filed” and expressly refused to recall the

mandate. (R.A. at 7).' On May 10, 1996, the lower court denied

the petition for rehearing without reviewing the merits of the

underlying judgment. (A. at51). On August 8, 1996, exactly 90

days after the May 10 order, and more than 190 days after the

lower court’s entry of judgment on January 26, petitioner

belatedly filed the petition for a writ of certiorari.

ADDITIONAL STATUTORY PROVISION

Section 2101(c) of Title 28, United States Code provides as

follows:

Any other appeal or any writ of certiorari

intended to bring any judgment or decree ina

civil action, suit or proceeding before the

Supreme Court for review shall be taken or

applied for within ninety days after the entry

of such judgment or decree. A justice of the

1. References to respondent's appendix will be in the form (R.A. at __)

and references to petitioner's appendix will be in the form (A. at __).

2

Supreme Court, for good cause shown, may

extend the time for applying for a writ of

certiorari for a period not exceeding sixty

days.

COUNTER STATEMENT OF THE CASE

On two separate occasions in April 1991, petitioner sold a

“pirate” cable descrambler, more commonly known as a black

box, to undercover investigators employed by respondent. (A.

at29). “Pirate” cable descramblers allow subscribers with basic

cable service to obtain “premium” channels, such as HBO or

Showtime, without paying the correspondingly higher fees.

During the first sale on April 9, 1991, petitioner asserted that he

did not make money from selling descramblers but “just like[d]

to screw the cable company.” (A. at47). Lateron April 18, 1991,

petitioner sold a second descrambler to undercover

investigators, and in a taped conversation of the sale, explained

how toconnect the descrambler, warned the investigators to hide

the descrambler from the cable company as it was “illegal,” and

admitted to selling a few other descramblers.’ (A. at 29-30, 46

n.7).

To halt this unlawful conduct, respondent commenced an

action in the United States District Court for the Western District

of New York against petitioner, seeking damages and injunctive

relief under sections 553 and 605 of the Cable Communications

Policy Act of 1984 (the “1984 Act”). (A. at 27). Statutory

damages under section 553 range from a minimum of $250 toa

maximum of $10,000, 47 U.S.C. § 553(a)(1) and (c)(3)(A)(ii),

and under section 605, range from a minimum of $10,000 toa

maximum of $100,000. 47 U.S.C. § 605(a), (e)(3)(C)(@CD.

2. Fora fuller recitation of the facts, respondent refers the Court to the

opinion below. (A. at 11-14).

ne ee nn eee

en aia

3

. The district court granted respondent’s motion for summary

| judgmenton the section 553 claim, fixing respondent’s statutory

damages at $250. (A. at 44, 46). However, the district court

granted petitioner’s motion to dismiss respondent’s section 605

| claim, ruling that the proscriptions of section 605 did notextend

to the retransmission of cable television programming over

coaxial cables, and therefore did not apply to petitioner’s

| unlawful conduct. (A. at 42, 44).

The Second Circuit vacated the district court’s erroneous

decision on January 26, 1996, and remanded the case for the

imposition of the enforcement remedies available under section

605. (A. at 26). Inreversing the district court, the Second Circuit

engaged in a painstaking study of section 605, which included

analysis of pertinent provisions of the 1984 Act, the

Communications Act of 1934 (the “1934 Act”), and amendments

to the 1934 Actin 1968; examination of the legislative history of

the 1984 Act; and review of judicial interpretations of section

605, both prior to and after the passage of the 1984 Act. The

Second Circuit then concluded that because respondent’s

distribution of cable television programming involved the

receipt of radio signals by satellite, “the continued transmission

of radio signals via cable . . . can be regarded as the ‘receipt,

forwarding, and delivery of [radio] communications ...

incidental to [the transmission]’ . . . within the meaning of [the

pertinent definitional section of 1984 Act, 47 U.S.C.] § 153(b).”

(A. at 10,20). Accordingly, the Second Circuit held that section

605 applied to the “distribution of descramblers for the

interception of cable television. . . and therefore to the conduct

of . . .[petitioner] Noel that is at issue on this appeal.” (A. at 24).

REASONS FOR DENYING THE WRIT

The petition does not merit this Court’s consideration. First,

petitioner has failed to satisfy the jurisdictional requirement of

4

Section 2101(c) of Title 28, United States Code, that his petition

be filed within 90 days of the entry of judgment. By failing to file

the petition fora writ of certiorari within 90 days of the entry of

the lower court's judgment, by neglecting to file atimely petition

for rehearing in the court below, and by not moving in this Court

to extend the time within which to file his petition, petitionercan

no longer seek to invoke the jurisdiction of this Court.

In addition, there are no “compelling reasons” warranting

this Court's consideration of the instant case. See Sup. Ct. R. 10.

The conflict between the Second and Seventh Circuits is based

upon a narrow issue of statutory construction, and its only

practical effect is to permit different penalties to apply to what is

concededly unlawful activity. This conflict does not subject

cable companies or cable “pirates” to contradictory mandates.

Nor does it provide companies that do business in several

judicial circuits, such as respondent, with intolerably uncertain

guidance in the conduct of their business affairs. The question

presented would also benefit from insights provided by lower

courts that may consider this issue. Finally, the Second Circuit

fully considered and correctly resolved the issues presented.

THE PETITION IS JURISDICTIONALLY DEFECTIVE.

For a petitioner to clothe this Court with jurisdiction, he

must file his petition for a writ of certiorari “within ninety days

after the entry of [the] judgment,” 28 U.S.C. §2101(c), unless the

petitioner either filed a “timely” petition for rehearing in the

lower court, Sup. Ct. R. 13.3, or moved for an extension of time

to file his petition for a writ of certiorari in this Court, Sup. Ct.R.

13.5. As petitioner here met none of these jurisdictional

requirements, his petition for a writ of certiorari should be

denied.

5

Section 2101(c), of Title 28, United States Code, supplies

the general rule governing the filing of certiorari petitions in

civil cases and invests this Court with jurisdiction only when a

petitioner files the petition “within ninety days after the entry of

[the] judgment ....”> “This 90-day limit is mandatory and

jurisdictional.” Missouri v. Jenkins, 495 U.S. 33,45 (1990). By

filing his petition fora writ of certiorari on August 8, 1996, more

than 190 days after the entry of the judgment on January 26,

1996, petitioner has failed to satisfy this 90-day jurisdictional

rule.

Petitioner also did not file a timely petition for rehearing in

the court below, which would have tolled the start of the 90-day

period. See Sup. Ct. R. 13.3. A timely petition for rehearing

suspends the finality of the underlying judgment until either the

denial of the petition for rehearing or the subsequent entry of

judgment upon the grant of a rehearing. See Sup. Ct. R. 13.3;

Missouri v. Jenkins, 495 U.S. at 46 (1990): Department of

Banking v. Pink, 317 U.S. 264, 266 (1942).

The court below entered its judgment on January 26, 1996.

Pursuant to Fed. R. App. Proc. 40, petitioner had 14 days from the

“entry of judgment,” or until February 9, 1996, within which to

file a timely petition for rehearing, a deadline that petitioner

failed to meet by not submitting any petition for rehearing until

March 1, 1996. When the lower court rejected this petition for

rehearing as untimely, counsel for petitioner moved, on March 7,

1996, to enlarge the time within which to file the petition for

rehearing, claiming that his tardiness stemmed from his

erroneous belief that the 14-day period ran from the issuance of

3. To invoke the jurisdiction of this Court, petitioner cites to only one

provision, 28 U.S.C.§ 1254 (see Petition at 1), astatute which merely recites

that this Court may review decisions of the Courts of Appeals by means of a

writ of certiorari. Petitioner omits any reference to 28 U.S.C. § 2101(c), which

reference would, if made, alert this Court to the 90-day jurisdictional time

limit. Missouri v. Jenkins, 495 U.S. 33, 45 (1990).

6

the mandate on February 16, 1996. By order dated March 29,

1996, the lower court granted the out-of-time motion “to the

extent that the petition for rehearing may be filed” and expressly

refused torecall the mandate. (R.A. at 7). On May 10, 1996, the

lower court denied the petition for rehearing, (A. at 51), and on

August 8, 1996, petitioner filed his petition for a writ of

certiorari.

Only if the 90-day filing period began torun anew from the

lower court’s denial of the untimely petition for rehearing would

the petition before this Court be timely. An untimely petition for

rehearing generally does not toll the running of time for filing a

petition fora writ of certiorari. Pfister vy. Northern Ill. Fin. Corp.,

317 U.S. 144, 150-51 (1942). The sole exception to this well-

established rule occurs when the petitioner can demonstrate that

the court below entertained or considered the untimely petition

for rehearing on its merits. See Federal Power Comm'n v. Idaho

Power Co., 344 U.S. 17, 21 n.1 (1952) (petition for certiorari

filed within 90 days of lower court’s second judgment was timely

where untimely motion for clarification was entertained and

considered on the merits and the original judgment was

modified); Bowman v. Loperena, 311 U.S. 262, 265-66 (1940)

(petition for rehearing filed out of time but entertained by the

court and dealt with upon its merits enlarged the time for taking

an appeal).

In this case the court below denied the petition forrehearing

without any apparent reexamination of the grounds for its

original order.* Indeed, by not recalling its mandate, the lower

4. In Pfister, this Court concluded that an order denying a petition for

rehearing on the merits would show “a refusal to modify the original order.”

317 U.S. at 150-51. The Court therefore held that the lower court had not

entertained or considered the merits of a petition for rehearing where the order

denying the petition stated “there is no equity or merit in the petition for

rehearing.” /d. at 151.

7

court clearly signaled that it did not mean to disturb the finality

of its prior judgment. Thus, the legal rights and obligations of the

parties and the finality of the judgment for purposes of review

were fixed well before the lower court's denial of the petition for

rehearing. See Department of Banking y. Pink, 317 US. 264,

266-67 (1942) (post-judgment motion that did not suspend the

finality of the judgment did not toll the running of the period in

which to file a petition for certiorari). Petitioner cannot

establish, therefore, that the denial of the petition for rehearin g

extended petitioner's time to appeal beyond 90 days following

the entry of the January 26, 1996 judgment. Pfister at 150.

Petitioner also did not file a motion in this Court to extend

the time period within which to file the petition for a writ of

certiorari. See 28 U.S.C. § 2101(c):; Sup. Ct. R. 13.5. Thus,

having taken no steps to avoid the rigors of the 90-day rule,

petitioner cannot now invoke this Court’s jurisdiction by filing

a tardy petition.* Accordingly, the petition fora writ of certiorari

should be denied.

Il.

PETITIONER HAS FAILED TO PRESENT

COMPELLING REASONS THAT WOULD JUSTIFY THE

GRANT OFA WRIT OF CERTIORARI.

In urging this Court to grant certiorari, petitioner makes a

solitary argument —aconflict between the Second and Seventh

5. Additionally, since counsel's “mistake” in determining when to file

his petition for rehearing cannot qualify as “good cause,” under Fed. R. App.

Proc. 26(b), see Shumar v. United States, 423 U.S. 879, 881 (1975) (Douglas,

Brennan, and Marshall, JJ., dissenting from denial of certiorari) (“If the good-

cause requirement of Rule 26(b) possesses any meaning at all, the

inadvertence of a litigant cannot qualify as good cause”), the lower courts

grant of leave to file the petition out of time was groundless and therefore, the

petition for rehearing was totally ineffective with respect to that court's

original order.

8

Circuits regarding the issue of whether section 605 applies to the

transmission of radio transmissions over coaxial cables needs to

be resolved. (Petition at 6-7). This solitary factor provides the

Court with no “compelling reason” to grant certiorari.

A. The Asserted Conflict Is Tolerable And Review By This

Court Would Be Premature.

Notall conflicts between circuits need to be resolved by this

Court. “Some conflicts are tolerable. Others can be resolved

more effectively by Congress.” Hiersche v. United Sta‘es, 503

U.S. 923, 925 (1992) (Stevens, J., respecting the denial of

certiorari). The apparent conflict in the instant case is eminenity

“tolerable.” Confined to two circuits, the existing conflict

merely allows different penalties to apply to conduct which all

parties concede is unlawful. The conflict does not subject any

party to conflicting statutory commands, nor does it create

intolerably uncertain guidance concerning the affairs of

businesses operating in several judicial circuits. Thus, this

conflict, whichis narrow both in terms of the number cf circuits

involved and its practical consequences, need not be resoived by

the Courtat this time. See, e.g., Walker v. United States, 506 U.S.

967 (1992) (certiorari denied despite recognized conflict among

eight of the federal courts of appea!); Randolph Cent. Sch. Dist.

v. Aldrich, 506 U.S. 965 (1992) (certiorari denied despite

acknowledged conflict among five of the federal courts of

appeal).

This Court's review of the narrow statutory construction

issue presented should be deferred to permit other courts of

appeals “to weigh in on one side or another of the unsettled issue

....” Beaulieu v. United States, 497 U.S. 1038, 1039 (1990)

(White J., dissenting from denial of certiorari). Indeed, as

Justice Stevens has noted:

9

experience with conflicting interpretations

of federal rules may help to illuminate an

issue before it is finally resolved and thus

may play a constructive role in the

lawmaking process. The doctrine of judicial

restraint teaches us that patience in the

judicial resolution of conflicts may

sometimes produce the most desirable result.

Justice Stevens, Some Thoughts on Judicial Restraint, 66

Judicature 177, 183 (1982). Thus, for this Court to address the

issue now without the benefit of the views of these other courts

would be premature, unwarranted, and inconsistent with this

Court's well-established “policy of letting tolerable conflicts go

unaddressed until more than two courts of appeals have

considered a question.” Justice Brennan, Some Thoughts on the

Supreme Court's Workload, 66 Judicature 230, 233 (1983). See

also McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens,

Blackmun, Powell, JJ., respecting the denial of certiorari)

(recognizing that “it is a sound exercise of discretion for the

Court to allow the various States to serve as laboratories in which

the issue receives further study before it is addressed by this

Court”).

B. The Decision Below Was Correct.

In addition, because the Second Circuit correctly decided

the statutory construction issue, no manifest injustice will result

from the decision below. The pivotal question, as phrased by the

court below, was “whether the descramblers sold by ...

[petitioner] Noel were intended to be used to ‘receive . . . any

. .. Communication by radio’ within the meaning of the third

sentence of § 605(a), an inquiry that requires examination of the

definition of ‘communication by radio’ in [the definitional

section of the 1984 Act, 47 U.S.C.] § 153(b).” (A. at 15).

10

Recognizing that respondent simultaneously retransmits

satellite-delivered cable television program signals to its

customers, the lower court held that:

[t]he continued transmission of radio signals

via cable after their receipt at the headend of

a cable television system can be regarded as

the “receipt, forwarding, and delivery of

[radio] communications ... incidental to

[the transmission]” of the pictures and

sounds transmitted by those communications

within the meaning of §153(b).

(A. at 20).

The lower court’s decision is amply supported by the

legislative history of the 1984 Act, pre-1984 decisions that

consistently interpreted section 605 as prohibiting the

interception of cable television programming, and post-1984

decisions that have held section 605 applicable to the conductat

issue in this case.

Among the legislative history relied upon was House Report

No. 934, 98th Cong., 2d Sess. 83 (1984), reprinted in

U.S.C.C.A.N. 4655, 4720, which discussed the newly enacted

section 553. The Second Circuit reviewed this Report, which

reads in part:

[e)xisting section 605 of the

Communications Act of 1934 includes a

prohibition against the unauthorized

reception of communications services.

Nothing in [§ 553] is intended to affect the

applicability of existing Section 605 to theft

of cable service, or any other remedies

1]

available under existing law for theft of

service.

(A. at 21) (emphasis in opinion). The Second Circuit concluded

that “in view of the uniform prior judicial interpretation of § 605

as applicable to the theft of cable service, the . . emphasized

passage ... was intended to make clear that § 605 would

continue to be so applicable.” (A. at 22).

The Second Circuit's conclusion was further buttressed by

the statement of Senator Robert W. Packwood, chairman of the

Senate Committee on Commerce, Science and Transportation,

the committee responsible for the 1984 Act:

H.R. 4103 as reported by Committee

recodifies without modification section 605

to the Communications Act of 1934 as new

section [605](a). Jn amending existing

section 605, it is intended to leave

undisturbed the case law that has developed

confirming the broad reach of section 605 as

a deterrent against piracy of protected

communications. Over the years federal

courts, consistent with congressional intent,

have recognized that section 605 provided

broad protection against the unauthorized

interception of various forms of radio

communications. Jt is the Committee's

intention that the amendment preserve these

broad protections; that all acts which

presently constitute a violation of present

605 shall continue to be unlawful under that

section as amended and redesignated by H.R.

4103.

12

(A. at23) (emphasis in opinion). Senator Packwood’s statement

emphasized the point made in the House Report — that Congress

expected 605 to continue its role in combatting cable signal

piracy and intended the overlap between the coverage of section

605 and that of section 553.

In United States v. Norris, 88 F.3d 462 (7th Cir. 1996), the

Seventh Circuit did not adopt the Second Circuit’s interpretation

of the statutory scheme, nor its determination that the continued

transmission of radio signals via cable does not change the nature

of the communication. The Seventh Circuit concluded instead

that section 605 did not extend to the retransmission of radio

communications over coaxial cables because it decided that

radio transmissions cease being radio communications and

become wire communications at the discrete point at which they

are retransmitted by coaxial cables. 88 F.3d at 467-68.

The Seventh Circuit’s dichotomy between radio and wire

communications is false. First, in United States v. Southwestern

Cable Co., 392 U.S. 157, 169 (1968), this Court held that the

simultaneous retransmission of radio communications is a

“stream of communication [that] is essentially uninterrupted and

properly indivisible.” Second, the definitions of wire and radio

communications are not mutually exclusive. As the Second

Circuit emphasized, the statutory definition of radio

communications includes “all instrumentalities, facilities,

apparatus, and services (among other things, the receipt,

forwarding, and delivery of communications) incidental to such

transmission.” (A. at 15, quoting 47 U.S.C. § 153(b)). The

Second Circuit acknowledged the obvious statutory overlap, but

appropriately noted that “[a]lthough the resulting interplay and

overlap between §§ 553 and 605 may not demonstrate ‘a

convenient and inviting sense of order,’ (citation omitted) itis for

Congress, not the courts to address any perceived resulting

disorder (citation omitted).” (A. at 25).

13

In conclusion, the Second Circuit, in view of the broad

definitional language of section 153(b), the uniform judicial

authority prior to 1984 holding section 605 applicable to cable

communications, and pertinent legislative history, correctly

concluded that Congress intended section 605 to apply to the

retransmission of cable television programming over coaxial

cable where such programming originated as _ radio

communications. Thus, the conflict between the Second and

Seventh Circuits presents this Court with no “compelling

reason{[ ]” toreview the decision below. See Sup. Ct. R. 10.

A ee ee ee ee eee aa

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

| WILLIAM G. PRIMPS

Counsel of Record

PETER K. VIGELAND

LORNA MCKENZIE

LeBOEUF, LAMB, GREENE &

MacRAE, L.L.P.

125 West 55th Street

New York, New York 10019

(212) 424-8000

RANDALL D. FISHER

ATHENA JAMESSON

INTERNATIONAL

CABLEVISION, INC.

d/b/a ADELPHIA CABLE

Five West Third Street

Coudersport, PA 16915

(814) 274-9830

Attorneys for Respondent

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R.A. |

APPENDIX A

NOTICE OF MOTION FILED MARCH 7, 1996

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Each motion must be accompanied

by supporting affidavit (Local Rule)

Docket No. 94-7887, 7889

NOTICE OF MOTION

for Withdrawal and Mandate and Enlargement of Time to

File Petition For Rehearing

International Cable

v.

Sykes

International Cable

Noel

MOTION BY:

Rodney O. Personius, Esq.

BROWN & KELLY, LLP

1500 Liberty Building

Buffalo, New York 14202

716/854-2620

R.A. 2

Appendix A

OPPOSING COUNSEL:

William G. Primps, Esq.

LeBoeuf, Lamb, Greene, & MacRae, L.L.P.

125 West SSth Street

New York, New York 10019

212/424/-8000

Has consent of opposing counsel:

A. been sought? W Yes ONo

B. been obtained? QOYes WNo

Has service been effected? Yes ONo

Is oral argument desired? OYes WNo

(Substantive motions only)

ee ae

Has argument date of appeal been set:

A. by scheduling order? M Yes ONo

B. byfirmdate ofargumentnotice? Yes OQONo

C. If Yes,enterdate: original appeal was argued May

17, 1995

Judge or agency whose order is being appealed: Hon. John T.

Curtin, United States District Judge, W.D.N.Y.

R.A. 3

Appendix A

Brief statement of the relief requested: Withdrawal of mandate

and enlargement of time for filing Petition for Rehearing.

* * *

By: s/ Rodney O. Personius

Rodney O. Personius, Esq.

Appearing for:

Noel and Sykes

Date

March 6, 1995

Appellees:

Q) Plaintiff Defendants

Previous requests for similar relief and disposition: N/A

Statement of the issue(s) presented by this motion: Should the

mandate be withdrawn and the time for filing a petition for

rehearing enlarged?

Brief «..tement of the facts: On January 26, 1996, a panel of

this Court vacated and remanded the District Court's

determination. Counsel for defendants-appellees mistakenly

understood that the issuance of the mandate constituted the

entry of “Judgment” for purposes of Federal Rule of Appellate

Procedure 40(a). Although counsel was provided with a copy of

the opinion of the Court, no notice of entry of judgment was

received. A Petition for Rehearing was then filed within 14 days

of the date upon which the mandate was issued, again under the

mistaken understanding issuance of the mandate constituted

R.A.4

Appendix A

entry of judgment. As such, the Petition for Rehearing was

submitted to the Court for filing on March 1, 1996.

Summary of the argument: Counsel for defendants-appellees

prepared and submitted for filing a Petition for Rehearing upon

the good faith, albeit mistaken, belief that the 14 day time

period for filing such a petition was to be measured from the

date the mandate was issued. This incorrect understanding was

premised upon the belief the mandate constituted the

“Judgment” oj the Court. Counsel believes the Petition raises a

meritorious issue of statutory construction under Title 47 in

relationship to the statutory definitions of wire communications

and radio communications under Section 153 of that statute.

The identical issue is now pending before the Seventh Circuit

Court of Appeals in the matter captioned United States of

America v. William C. Norris, Dkt. No. 95-1402. As the matter

has been vacated and remanded to the District Court it is not

believed the granting of this request for a withdrawal of the

mandate and enlargement of the time for filing a Petition to

March 1, 1996 will work any prejudice on plaintiff-appellant.

The sole issue to be determined upon remand concerns the

assessment of penalties and costs in favor of plaintiff-

appellant.

R.A.5

APPENDIX B

ORDER FILED MARCH 29, 1996

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Each motion must be accompanied

by supporting affidavit (Local Rule)

Docket No. 94-7887, 7889

ORDER

for Withdrawal and Mandate and Enlargement of Time to

File Petition For Rehearing

International Cable

v.

Sykes

International Cable

Noel

MOTION BY:

Rodney O. Personius, Esq.

BROWN & KELLY, LLP

1500 Liberty Building

Buffalo, New York 14202

716/854-2620

R.A.6

Appendix B

OPPOSING COUNSEL:

William G. Primps, Esq.

LeBoeuf, Lamb, Greene, & MacRae, L.L.P.

125 West SSth Street

New York, New York 10019

212/424/-8000

Has consent of opposing counsel:

A. been sought? W Yes

B. been obtained? Q) Yes

Has service been effected? W Yes

Is oral argument desired? QO) Yes

(Substantive motions only)

* * *

Has argument date of appeal been set:

A. by scheduling order? W Yes

B. by firm date ofargument notice? Yes

C. If Yes,enterdate: original appeal was argued May

17, 1995

Judge or agency whose order is being appealed: Hon. John T.

Curtin, United States District Judge, W.D.N.Y.

(J No

X) No

9 No

& No

No

OUNo

R.A. 7

Appendix B

Brief statement of the relief requested: Withdrawal of mandate

and enlargement of time for filing Petition for Rehearing.

* * *

IT IS HEREBY ORDERED that the motion be and it hereby is

granted to the extent that the petition for rehearing may be filed.

The mandate will not be recalled.

s/ Frank X. Altimari

s/ J. Daniel Mahoney

s/ John M. Walker Jr.

March 29, 1996

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED MARCH 29, 1996

GEORGE LANGE III, CLERK