HAMMER v. CABLEVISION OF BOSTON INC CSC CSC (2007)

Plaintiff brought this action in December, 2006 against the named defendants (collectively referred to as “Cablevision”), then the exclusive local cable provider pursuant to its franchise agreement with the Town of Ossining, alleging “fraud”, “breach of contract” and violation “of its public and fiduciary duty as a monopoly ․ in the community.”

The gist of the action is that at the inception of plaintiff's subscription to Cablevision's basic service in the year 2000, a Turner Classic Movies (TCM) channel was included in the “package” and that the inclusion of TCM was a material factor in his decision to subscribe and make the required monthly payments.   Sometime in 2006 Cablevision notified its subscribers, including plaintiff, that it would no longer include TCM in its basic “analog” service, but at a substantial additional monthly fee, would offer it only on its relatively new “digital” service.   In addition, a monthly charge would be required for a “conversion box.”   Plaintiff alleges that the inclusion of TCM in Cablevision's “basic package” was a material factor in his decision to become a Cablevision subscriber and in making the required monthly payments.

The complaint requested compensatory damages of $2,500.00 and $500.00 in punitive damages.   Prior to the joinder of issue, plaintiff served and filed and amended complaint alleging a “conspiracy”, violation of unspecified anti-trust laws, § 340 of the General Business Law, § 105.15 of the Penal Law, and deprivation of his “constitutional right to know,' ” and his request for relief was amended to include an injunction restraining Cablevision from continuing to engage in the acts complained of.

By order to show cause, Cablevision obtained a stay of this action by the Supreme Court on the ground that this court does not have jurisdiction to grant equitable relief.   The case was later returned to this court upon the plaintiff's consent to withdraw his request for injunctive relief.   Cablevision filed its answer to the amended complaint on June 20, 2007.

Plaintiff served a meticulously drafted set of Interrogatories.   At a conference before the court, plaintiff sought an order directing Cablevision to respond to them.   Cablevision advised the court that it was about to file a motion for summary judgment which would stay disclosure under CPLR 3214(b) until the determination of the motion is made “unless the court orders otherwise.”   The court suggested that plaintiff might successfully defeat its planned summary judgment motion on the ground that he did not yet have an opportunity to discover facts that could create triable issues.   Thus, with the apparent consent of Cablevision, the court directed it to respond to the interrogatories within a month and to state in its response any defenses or objections it may have to any of them.   Cablevision responded to plaintiff's interrogatories within the time allotted.

Thereafter, on October 24, 2007, plaintiff filed a motion pursuant to CPLR § 3126 to strike Cablevision's answer and on the ground that its responses to the interrogatories were incomplete.   Cablevision filed an answer to plaintiff's motion and a cross-motion for summary judgment and sanctions in mid-November.   On December 5th, plaintiff filed a cross-motion for summary judgment and sanctions and two affidavits in support of a new claim that the agreement he signed with Cablevision was invalidated by Cablevision's alleged non-compliance with § 70-26 of the Ossining Town Code. Cablevision filed a reply affirmation and a memorandum of law on December 13th.   All of the papers were timely served and filed within the dates provided by the court, as modified by apparent agreement between the parties.

Upon a careful reading of the papers submitted, including two memorandums of law by Cablevision, plaintiff's motion to strike Cablevision's answer is denied and the court concludes that there are no triable issues of fact, nor could there be any, even if plaintiff's interrogatories were responded to more fully.   Cablevision's business decisions may have been detrimental to the consumer and enabled by a powerful industry-wide lobby.   However, all of plaintiff's causes of action are hereby dismissed.

 Like it or not, however self-serving Cablevision's motives might have been, it had the contractual right to jettison TCM from its basic analog package under existing law.   The subscription agreement between Cablevision and its subscribers was routinely signed by each subscriber when services are initially installed, and is also posted on Cablevision's website.   Paragraph 15 provides:  “Rates.   All rates are subject to change in accordance with applicable law.”   Paragraph 17 incorporates by reference the “Terms of Service” as posted on its website.   One of such Terms' is a “Disclaimer”, which authorizes Cablevision to change its programming and pricing in accordance with applicable law.   The Disclaimer also appears in Cablevision's annual notice to subscribers and was on the notice received by plaintiff advising that TCM had been moved to a digital tier.

 Nor is there a valid claim of fraud under any scenario.   Cablevision took no money from plaintiff under false pretenses and provided the services he had contracted for.   Plaintiff received everything he paid for but not everything he had hoped for.

 Plaintiff's references to breach of trust and violations of the General Business Law, the Penal Law, and anti-trust laws are oblique at best.   These causes of action are not supported in any meaningful manner in plaintiff's papers.

 The practice of “bundling” may well not be in the public interest.   However, under the applicable federal statutes, cases, and present Rules of the Federal Communications Commission, there is no remedy that this court can grant.

 Plaintiff's belated claim that Cablevision's actions are in violation of Ossining Town Code § 70-26 may be correct.   Although the Cable Act of 47 U.S.C. § 543, provides that “regulation of the rates the provision of cable service' is governed exclusively by the federal statute and Commission regulations,” it leaves room for local governments to act in a manner that is not inconsistent with the rate regulation rules promulgated by the Federal Communications Commission.   Ossining Town Code § 70-26 does not appear to be inconsistent with any F.C.C. rules.   Nevertheless, as argued by Cablevision, it appears that plaintiff has no private right of action against it under New York or federal law.   Pursuant to Tepper v. Cablevision Systems Corp., 19 A.D.3d 585, 797 N.Y.S.2d. 131 (2d Dept.2005) and Broder v. Cablevision Systems Corp., 418 F.3d 187 (2nd Cir.2005), plaintiff's complaint regarding Cablevision's rates and its digital conversion of the TCM channel should be addressed to the New York Public Service Commission pursuant to Article 11 of the Public Service Law. Tepper also held that individual subscribers are not third party beneficiaries of Cablevision's agreements with municipalities.   Finally, whether Cablevision failed to comply with Ossining Town Code § 70-26 is a matter for determination by the Ossining Town Council rather by this court.

 Cablevision's request for sanctions is denied for the principal reason that Part 130 of the Rules of the Chief Administrator specifically excludes the Town and Village Courts from granting them.

This decision shall constitute an order of the court.

EDWIN S. SHAPIRO, J.