Judge Dismisses Two Plaintiffs in Broward County Cable Access Case

(December 10, 1999)  The federal judge presiding over the open access case in Broward County, Florida, dismissed the complaints of two cable company plaintiffs on the grounds that they lack standing. Four local cable companies filed suit challenging a Broward County ordinance passed last July which requires cable companies to provide competing ISPs access to their broadband Internet access transport facilities.

Related Documents
Order Granting Motion to Dismiss, 12/6/99.
Complaint of Comcast and Advanced Cable, 7/20/99.
Broward County Ordinance, 7/13/99.

U.S. District Court Judge Donald Middlebrooks issued an Order which dismisses cable operators Comcast Cablevision of Broward County (Comcast) and Advanced Cable (Advanced) from the suit. Comcast and Advanced currently provide cable television service in Broward County to about 17,000 and 47,000 customers, respectively.

Judge Middlebrooks' order does not affect two other Plaintiffs in the case, MediaOne of Greater Florida and TCI TKR of South Florida. Also, the dismissal of Comcast and Advanced is without prejudice. Finally, the order does not address the underlying issues raised by the dismissed plaintiffs' complaints. The order does not address the legality of the Broward County ordinance.

Excerpt from Broward County Ordinance

Sec. 1.02 Access to Broadband Internet Access Transport Services.

Nondiscriminatory Access Required. Subject to technical feasibility, Franchisee shall provide any requesting Internet Service Provider access to its Broadband Internet Access Transport Services (unbundled from the provision of content) on rates, terms, and conditions that are at least as favorable as those on which it provides such access to itself, to its affiliate, or to any other person. Such access shall be provided at any technically feasible point selected by the requesting Internet Service Provider.
"Broadband" shall mean a capability in excess of 144 kilobits per second.

Under the Cable Act of 1984, local governments have the responsibility for franchising cable operators within their jurisdictions.

On July 13, 1999, the Board of County Commissioners of Broward County adopted an ordinance which requires cable operators which also provide high speed Internet access to provide open access to their facilities to competing Internet Service Providers (ISPs). Cable companies oppose such rules, and assert that they are preempted by federal laws governing the cable industry.

The Broward County subsidiary of Comcast and Advanced promptly filed a complaint on July 20 seeking a declaratory judgment that Broward County open access ordinance is unlawful. Comcast alleged that the ordinance violates the federal Communications Act. It alleged that local franchising authorities cannot impose forced access requirements upon cable operators. It also alleged that the ordinance violates Comcast's rights under the First (speech), Fifth (takings), and Fourteenth Amendments.

Judge Middlebrooks dismissed the complaints of the two defendants on the grounds that they lacked standing to sue.

Standing is a constitutional doctrine which arises out of the Article III provision that "The judicial power shall extend to all cases ... controversies ..." The doctrine of standing focuses on the party bringing a claim. The plaintiff must have a sufficient interest in the outcome of the lawsuit to merit being the one to bring the suit.

Judge Middlebrooks, citing Supreme Court precedent, wrote that to satisfy the standing requirement:

(1) the plaintiff must have suffered an injury in fact, i.e. an invasion of a legally protected interest which is

(2) there must be a causal connection between the injury and the conduct complained of; and

(3) it must be likely, rather than speculative, that the injury will be redressed by a favorable decision.

Judge Middlebrooks found that Comcast and Advanced do not meet the first prong of the test -- injury in fact. While they are cable operators, and while they provide service to customers in Broward County, and while they intend to provide "high speed" Internet access in the future, this was not enough for this judge.

He wrote that "neither Plaintiff has an actual or well-founded fear that the Ordinance will be enforced against it. Too many "ifs" shield Plaintiffs from potential liability for Plaintiffs to have well-founded fears of being prosecuted under the Ordinance: if they elect to provide broadband access in Broward County and if an ISP requests access to their broadband services then and only then would Plaintiffs be subject to the Ordinance."

See also, Tech Law Journal Summary of AT&T v. Portland. This is another case concerning the legality of a local ordinance imposing an open access requirement on a cable company. It is presently in the U.S. Court of Appeals for Ninth Circuit.