Original Complaint of Comcast.
Case: Comcast Cablevision of Broward Co. et. al. v. Broward Co.
U.S. District Court, S.D. Florida, Case Number: 99-6934-CIV.
Date filed: July 20, 1999.

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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Plaintiffs, Comcast Cablevision of Broward County, Inc. (“Comcast-Broward”), and Advocate Communications, Inc. d/b/a Advanced Cable Communications (“Advanced Cable”), sue Defendant Broward County, Florida (“the County”), and state:

1. On July 13, 1999, the Board of County Commissioners for Broward County, Florida (“the Board”), enacted Ordinance No.1999-41 (“the Ordinance”) regulating access to the Internet.  The Ordinance is attached hereto as Exhibit A.

2. The federal government has strongly resisted imposing regulatory burdens on the Internet that would inhibit its growth and development.  As recently as July 19, 1999, the Chairman of the Federal Communications Commission (“FCC”) stated that lawmakers need to get out of the way of companies participating in the free market or risk curtailing progress.  Chairman William Kennard stated that he does not favor forcing cable companies to open their proprietary broadband networks to competitors and that the issue should be decided on a national, not local, level.  As FCC Commissioner Michael K. Powell recently stated, if there is “a contagion of different approaches [that] proliferate throughout the country, we will end up with an incoherent, disjointed policy melange that seems sure to impede the development of advance services, in any form, for our citizens.  Such concerns underlie the Constitutional commitment to interstate commerce and the federal supremacy clause.”

3. If it stands, the Ordinance violates the federal and state constitutional rights and contractual rights of every franchised cable operator in the County and interferes with the deployment of new technologies that would give every Broward County resident access to new, competitive Internet services.

4. Because the Ordinance exceeds the County's authority to regulate cable television and the Internet under the federal Communications Act; violates the First, Fifth and Fourteenth Amendment rights of franchised cable operators; unlawfully interferes with interstate commerce; and constitutes impermissible impairment of contract, the Plaintiffs bring this action seeking declaratory relief and all other remedies as the Court deems just.

5. The Ordinance imposes new and material business obligations on franchised cable operators, thereby unilaterally amending the Plaintiffs' bargained for contracts with the County.  The Ordinance establishes a legal requirement that any cable operator providing Internet service must allow any competitor to use its plant and facilities for the purposes of offering Internet access.  In doing so, the Ordinance purports to subject Plaintiffs to undisclosed future laws enacted by any other federal, state, or other legal jurisdiction at the whim of individual competitors.

6. The County enacted the Ordinance despite the contrary recommendation of its own staff, in the absence of substantial competent evidence to support its action, despite evidence from other municipalities that such an ordinance was premature and unjustified, and despite evidence from expert federal regulators that such an ordinance threatens to cripple an emerging technology, to stifle the provision of innovative new services, and to harm the public interest.  Additionally, the County took this action only after a competitor unlawfully indemnified the County for its own legislative action by agreeing to pay for the defense of this action.

JURISDICTION

7. This action arises under the Federal Communications Act of 1934, 47 U.S.C. §§151 et seq., as amended by the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, Sec. 2, 98 Stat. 2780; the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, Sec. 8, 106 Stat. 1484; the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107 Stat. 312, and the Telecommunications Act of 1996, Pub. L. No. 104, 110 Stat. 56. ("Communications Act").

8. This Court has jurisdiction over this action pursuant to the Constitution of the United States; 28 U.S.C. §§ 1331, 1343, 1367, 2201, and 2202; and 42 U.S.C. §§ 1983 and 1988 as an action arising under the laws of the United States; as an action seeking declaratory relief; and as an action seeking relief under state law claims which arise out of the same nucleus of operative fact as the federal question claims.

9. Venue is proper in this District pursuant to 28 U.S.C. §1391(b) because the Defendant is located in this District, the events giving rise to the claims occurred in this District, and a substantial part of the property that is the subject of this action is situated in this District.

10. There is an actual controversy as to whether the Ordinance conflicts with and is contrary to provisions of the Communications Act, the United States Constitution, the Florida Constitution and the Plaintiffs’ franchise agreements with Broward County.  Plaintiffs seek a declaratory ruling that the Ordinance is illegal and invalid and reserve the right to prove and seek any damages resulting from the County's unlawful actions.

THE PARTIES

11. Plaintiff, Comcast Cablevision of Broward County, Inc. is a Delaware corporation that has its principal place of business in Broward County, Florida.  Comcast-Broward provides cable television service over cable television systems in Broward County pursuant to franchise agreements with the County, municipal corporations and other political subdivisions of the State of Florida located in Broward County.

12. Comcast-Broward serves approximately 17,000 customers in unincorporated Broward County on a non-discriminatory basis at non-discriminatory rates within its franchise area.

13. Plaintiff, Advocate Communications, Inc. d/b/a Advanced Cable Communications is a Florida corporation that has its principal place of business in Broward County, Florida.  Advanced Cable provides cable television service over cable television systems in Broward County pursuant to franchise agreements with the County and local municipalities.

14. Advanced Cable operates cable television systems in Broward County, Florida, serving 47,000 customers on a non-discriminatory basis at non-discriminatory rates within its franchise area.  Advanced Cable offers its customers a variety of cable services, including an optional premium cable service, called the ISP Channel, that provides interactive, multimedia content from the world's leading content providers and permits subscribers to obtain high-speed access to the Internet.  Advanced Cable purchases the right to distribute the ISP Channel service from MediaCity World, Inc. and then sells the service to individual subscribers.

15. Advanced Cable began offering this service to cable television subscribers in Broward County in August 1998, and pays franchise fees to the County based on revenues received from that service.  Currently, just over 900 customers subscribe to the ISP Channel.

16. Defendant, Broward County, Florida, is a political subdivision of the State of Florida, having the power and authority to issue and grant franchises for the provision of cable television service within unincorporated areas of the County, and was acting through its officers performing in their official capacity under color of state law, specifically, the Board.

17. The County is a “franchising authority” as that term is defined in the Communications Act.  47 U.S.C. §522(10).

THE ORDINANCE AT ISSUE

18. When it was first proposed in early 1999, the County’s staff recommended against enacting the Ordinance.

19. In addition, the FCC recently found that there is no evidence that the provision of high speed Internet access by cable operators implicates public interest concerns sufficient to warrant regulation.

20. In July 1999, after further careful study, the County staff once again recommended that the Board not enact the Ordinance.

21. Despite staff's recommendation and the admonishment by the FCC, the Board enacted the Ordinance on July 13, 1999, by a 4 to 3 vote after a company lobbying in favor of the Ordinance agreed to indemnify the County for any attorneys' fees it incurred in defending any challenge to the lawfulness of the Ordinance.

22. The Board enacted the Ordinance without substantial competent evidence  to support the finding that it is in the public interest to require cable operators to hand over their proprietary networks to all competing Internet Service Providers (“ISPs”) that might want access.

23. The Ordinance compels franchised cable operators to allow any other ISP access to the cable operator's proprietary broadband network for the delivery of Internet services.  Section 1.02 states:

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.

24. The Ordinance imposes this requirement without regard to the cost to cable operators of making such access technically feasible.

25. Section 1.05 of the Ordinance provides a private cause of action to any competitor who has been denied access.  Section 1.06 permits the County to bring an action to enforce the Ordinance through injunctive relief or any other means.

26. The Ordinance also contains a provision by which it would automatically amend itself without further action by the Board in order that it might mirror any terms imposed someday by some other authority enacting an ordinance somehow more onerous than Broward County's Ordinance.  Section 1.04 states:

In the event that Franchisee is or shall become subject to more extensive or different nondiscriminatory equal access requirements with respect to the provision of Broadband Internet Access Transport Services imposed by or agreed upon with any other jurisdiction in the United States, any requesting Internet Service Provider may, at its option, require Franchisee to comply with such other requirements in lieu of Section 1.02 of this Ordinance.

In conjunction with Section 1.05, Section 1.04 subjects cable operators to suit by a competitor for failure to comply with terms and conditions contained in an as yet unknown ordinance enacted by an as yet unknown franchising authority under as yet unknown circumstances, without the need for any finding by the Board that such terms and conditions are justified, reasonable, necessary and within its jurisdictional powers.

27. Section 1.04 does not identify what would be considered a “more extensive” requirement or a “different” access requirement, apparently leaving that determination up to the whim of individual ISPs, who are permitted to randomly apply the Ordinance to any cable operator in the County.

COUNT I

FEDERAL COMMUNICATIONS ACT

28. Plaintiffs reallege Paragraphs 1-27 as if fully set forth herein.

29. The Communications Act provides for the regulation of telecommunications carriers under Title II and for the regulation of cable operators under Title VI.  The terms “telecommunications carrier” and “cable operator” are separately defined and are mutually exclusive.

30. Title VI delineates those aspects of cable service which may be regulated and which jurisdiction may engage in such regulation.  Under Title VI, certain aspects of cable service may be regulated solely by federal authorities, and other aspects are reserved for regulation by local franchising authorities.  Internet access and services provided by a cable operator meets the definition of a “cable service” as that term is defined in Title VI.

31. Pursuant to section 636(c) of the Communications Act, 47 U.S.C. §556(c), “any provision of law of any . . . franchising authority . . . which is inconsistent with this Act shall be deemed to be preempted and superseded.”

32. Defendant violated the Communications Act by imposing obligations on cable operators that the Act prohibits.  Specifically, the Ordinance constitutes an attempt by the County to impose carriage obligations and technical requirements on cable operators proscribed by the Act.  Moreover, by attempting to force cable operators to open their proprietary networks to any ISP that wishes to use it, the County is imposing common carrier regulations on cable operators in direct violation of the Communications Act.

33. Section 612 of the Communications Act, 47 U.S.C. §532, establishes very precisely the eligibility and procedures by which an unaffiliated service provider may obtain access to a cable operator's system without the consent of the cable operator.

34. The County's attempt to impose mandatory access to cable operators' cable modem platform violates Section 612 of the Communications Act because it imposes obligations in excess of those provided under the Communications Act.

35. Section 621(c) of the Act, 47 U.S.C. §541(c), provides that “[a]ny cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service.”

36. The County's attempt to require cable operators to carry third-party content providers and ISPs violates Section 621(c) of the Communications Act by attempting to subject cable operators to regulation as a common carrier or utility by reason of providing a cable service.

37. Section 624 of the Communications Act, 47 U.S.C. §544, prohibits local franchising authorities, such as the County, from “establish[ing] requirements for video programming or other information services.”  §544(b)(1).  It also states that the County may not “prohibit, condition, or restrict a cable system's use of any type of subscriber equipment or any transmission technology.”  §544(e).  Congress further provided that local franchising authorities such as the County “may not impose requirements regarding the provision or content of cable services, except as expressly provided in this subchapter.”  §544(f).

38. Plaintiffs are not incumbent local exchange carriers of telecommunications services as that term is defined in Title II of the Communications Act.  47 U.S.C. §251(h).

39. Under the Communications Act, one class of communication providers, Incumbent Local Exchange Carriers, may be required to unbundle their networks in the fashion mandated by the Ordinance.  47 U.S.C. §251(c).

40. Advanced Cable is not offering a telecommunications service over the Broward County cable system and is not subject to Title II of the Act.  Even if it were offering a telecommunications service, the County has no authority to regulate such a service or to enforce Title II of the Act.

41. The County's attempt to impose mandatory access to cable operators' cable modem platform on behalf of competing third-party online services and ISPs across the country is expressly preempted and superseded under Section 636(c) and Section 251 of the Communications Act and is generally preempted by federal law.

42. Internet service, when provided by a cable operator, is a cable service under the Communications Act, subject to all the limitations on the powers of local franchising authorities set forth in paragraphs 29 through 41 above.  The County's attempt to impose mandatory access to cable operators' cable modem platform on behalf of competing third-party content providers and ISPs violates the above-cited sections of the Communications Act by attempting to establish requirements for video programming or other information services, to condition Plaintiffs' use of transmission technology, and to impose requirements regarding the provision or content of cable services that are not permitted by the Communications Act.

43. The County acted under color of state law to deprive Plaintiffs of rights secured to them by the Communications Act, in violation of 42 U.S.C. §1983.

44. Plaintiffs reserve the right to pursue damages in an amount to be proven at trial.  Plaintiffs are entitled to their reasonable attorney fees, pursuant to 42 U.S.C. §1988.

COUNT II

VIOLATION OF FIRST AMENDMENT RIGHTS

45. Plaintiffs reallege Paragraphs 1-27 as if fully set forth herein.

46. This Count enforces the Plaintiffs' First Amendment rights, which the Ordinance violates by limiting Plaintiffs' freedom to determine the content of their speech and by treating similarly situated speakers differently.

47. The First Amendment to the United States Constitution provides that Congress shall make no law abridging freedom of speech.  The First Amendment applies to the states and to local governments such as the County pursuant to the Fourteenth Amendment to the United States Constitution.

48. Cable television companies such as Plaintiffs are speakers for purposes of the First Amendment.

49. The Ordinance is a governmental mandate requiring that Plaintiffs and other cable operators distribute speech of a competitor in violation of their free speech rights under the First Amendment.  Even if compliance with the Ordinance were technologically feasible, it would require cable operators to limit their own speech and to choose among competing speakers, favoring some speakers over others.

50. No substantial competent evidence supports the County's determination that a real harm existed, implicating a governmental interest, and that the interest would be served by the Ordinance.

51. The harms cited by the County to justify the Ordinance are merely conjectural.  The County drew unreasonable inferences regarding speculative harms and purported governmental interests based on inadequate evidence.

52. The Ordinance burdens substantially more speech than is necessary to further the County's purported interests.  In addition, the Ordinance fails to serve the County's purported interests in a direct and effective way.

53. The Ordinance also treats similarly situated First Amendment speakers differently by imposing requirements on cable operators that are not imposed on other providers of Internet access and services, and by imposing different requirements as between cable operators.

54. The County acted under color of state law to deprive Plaintiffs of rights secured to them by the United States Constitution, in violation of 42 U.S.C. §1983.

55. Plaintiffs reserve the right to pursue damages in an amount to be proven at trial.  Plaintiffs are entitled to their reasonable attorney fees, pursuant to 42 U.S.C. §1988.

COUNT III

INTERFERENCE WITH INTERSTATE COMMERCE

56. Plaintiffs reallege Paragraphs 1-27 and 54-55 as if fully set forth herein.

57. The Ordinance is unconstitutional because, in violation of the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, it imposes unnecessary and impermissible burdens on interstate commerce.

58. The Internet fits within the parameters of interests traditionally protected by the Commerce Clause as a part of the national infrastructure for communications and trade.  The Ordinance regulates an aspect of the Internet that by its unique nature demands cohesive national treatment and, therefore, it is offensive to the Commerce Clause.  The Ordinance subjects interstate commerce to inconsistent regulations.

59. The Ordinance places burdens on interstate commerce that exceed any local benefit that allegedly may be derived from it.  If repeated by other franchising authorities, such actions could paralyze development of the Internet.

COUNT IV

VIOLATION OF DUE PROCESS (VOID FOR VAGUENESS)

60. Plaintiffs reallege Paragraphs 1-27 and 54-55 as if fully set forth herein.

61. The Ordinance is invalid because it is void for vagueness.

62. The Ordinance fails to define what is meant by “open access.”  That term has no defined meaning in the industry.

63. The Ordinance fails to define what the County means by “Internet access transport” services and facilities.  In the industry, the terms “access” and “transport” are two different things, and it is nonsensical to use them together.

64. The Ordinance fails to define what constitutes “technical feasibility” such that a cable operator could know at what time or under what conditions it is subject to an ISP's demand.

65. No persons of common intelligence could agree upon the meaning in Section 1.04 of what is a “more extensive” equal access requirement or a “different” equal access requirement.

66. Moreover, Section 1.04 of the Ordinance is a violation of due process because it subjects cable operators to unspecified and ad hoc regulations of other jurisdictions without the enactment of any law setting forth ascertainable standards and without notice or an opportunity to be heard.

67. The Ordinance fails to provide notice of the penalties to which a cable operator is subject for noncompliance.  Section 1.06 leaves the enforcement measures available to the County wide open, stating “this Ordinance may be enforced by Broward County including, without limitation, enforcement by injunctive relief.”  There is no way to determine whether cable operators are subject to civil fines, seizures, criminal penalties, or other unspecified remedies.

68. In addition, the Ordinance violates the Due Process rights of cable operators because it does not have uniformity in application and effect.

COUNT V

IMPAIRMENT OF CONTRACT

69. Plaintiffs reallege Paragraphs 1-27 and 54-55 as if fully set forth herein.

70. Article I, Section 10 of the Florida Constitution provides that “[n]o . . . law impairing the obligation of contracts shall be passed.”

71. In addition, the United States Constitution, Art. I, § 10, provides that "No State shall . . . pass any . . . Law impairing the Obligation of Contracts.”  The Ordinance violates the Contract Clause of the United States Constitution, Article I, § 10 and the Florida Constitution because it would abrogate Plaintiffs' contractual rights under their franchise agreements.

72. Plaintiffs' franchise agreements are contracts between Plaintiffs and the County, representing a bargained for exchange.

73. County ordinances that unreasonably and unnecessarily impair the obligations of a contract, such as the Ordinance in the instant case, may be stricken as unconstitutional.

74. There is no compelling governmental interest behind the enactment of the Ordinance that justifies the unilateral modification of the franchise agreements between Plaintiffs and the County.

75. The Ordinance unreasonably intrudes into the parties’ bargain to a degree greater than is necessary to achieve the stated purpose by unilaterally and materially altering the terms of the franchise agreements.

76. The County's unilateral modification of its contracts with Plaintiffs is not supported by corresponding consideration.

77. The Ordinance unlawfully imposes unspecified and ad hoc standards of conduct and obligations of contract upon the Plaintiffs at the whim of ISPs without any notice or public hearing.

COUNT VI

UNLAWFUL TAKING

78. Advanced Cable realleges Paragraphs 1-27 and 54-55 as if fully set forth herein.

79. The Ordinance constitutes an unlawful taking of Comcast-Broward's property under the Fifth Amendment to the United States Constitution and Article X of the Florida Constitution.  The County lacks a legitimate public purpose that is supported by substantial competent evidence to justify the taking of Comcast-Broward's property.

80. The Ordinance is arbitrary and capricious because it does not bear a substantial relation to the public health, safety, morals or general welfare, and is therefore an invalid exercise of the police power.

81. The Ordinance fails to provide just compensation for the bandwidth taken from Comcast-Broward and given to its competitors by the County.

COUNT VII

UNLAWFUL DELEGATION OF AUTHORITY

82. Plaintiffs reallege Paragraphs 1-27 as if fully set forth herein.

83. The Ordinance is invalid because it unlawfully delegates the County's authority to individual ISPs and to unidentified authorities in “any other jurisdiction in the United States” in violation of the Florida Constitution.

84. The County's advance adoption of any act or ruling that another governing or administrative body might see fit to adopt in the future is an unlawful delegation of power.

85. Moreover, the Ordinance in no way limits the scope of ISPs to whom the County is delegating its authority.  The Ordinance speaks to “any Internet Service Provider,” presumably anywhere in the United States.

86. Section 1.04 gives an ISP the unbridled discretion to choose which requirements of which jurisdiction it would like to apply to Plaintiffs.  The Ordinance unlawfully delegates to individuals or to other jurisdictions the task of defining what is a “more extensive” regulation or what is a “different” regulation.  The County has automatically incorporated by reference the regulations of other jurisdictions without the necessity for public notice and findings that such terms and conditions are necessary, appropriate and lawful.  The effect is to surrender the legislative authority of the County.

RELIEF REQUESTED

WHEREFORE, Plaintiffs request that the Court enter judgment in their favor against the County, and grant declaratory and injunctive relief:

a. Under Count I, declaring that the County has violated the Communications Act by inserting unlawful obligations into Plaintiffs' franchise agreements;

b. Under Counts II-VI, declaring that the unlawful obligations violated Plaintiffs civil rights under the First, Fifth and Fourteenth Amendments of the United States Constitution;

c. Under Count V, declaring that the Ordinance constitutes impermissible impairment of contract and, therefore, is invalid under the Florida Constitution, Article I, Section 10, and under the U.S. Constitution, Article I, Section 10;

d. Under Count VII, declaring that the Ordinance is an unlawful delegation of authority;

e. Awarding Plaintiffs their reasonable attorneys' fees and costs of litigation under 42 U.S.C. §1988; and

f. Awarding Plaintiffs such other relief as the Court deems equitable, just and proper.

Plaintiffs reserve the right to seek damages under 42 U.S.C. §1988 and Rule 54(d), F.R.C.P.

Respectfully submitted,

Dated: July 20, 1999