Order Granting Motion to Dismiss.
Re: Comcast v. Broward County.
U.S. District Court, S.D. Florida, Miami, Case No. 99-6934.
Date: December 6, 1999.
Source: A fax copy of the Order was kindly provided by Andrew McBride of the law firm of Cooper Carvin and Rosenthal. Tech Law Journal scanned the fax copy, and converted to HTML.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NOS. 99-6934-CIV & 99-6945-CIV-MIDDLEBROOKS

COMCAST CABLEVISION OF
BROWARD COUNTY, INC. and
ADVOCATE COMMUNICATIONS,
INC., d/b/a ADVANCED CABLE
COMMUNICATIONS,

     Plaintiffs,

vs.

BROWARD COUNTY, FLORIDA,

     Defendant,
_______________________________

TCI TKR OF SOUTH FLORIDA, INC.
and MEDIAONE OF GREATER
FLORIDA, INC.

vs.

BROWARD COUNTY, FLORIDA,

     Defendant.
_______________________________

ORDER GRANTING MOTION TO DISMISS

This Cause came before the Court upon Defendant Broward County's Motion to Dismiss the Complaint of Plaintiffs Comcast Cablevision and Advanced Cable, filed August 16, 1999 in Case No. 99-6934 (DE#6). The Court has reviewed the Motion, as well as Plaintiff's Response (DE#12) and Defendant's Reply (DE#17), and is otherwise fully informed in the premises.

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I.  Background

On July 13, 1999, Defendant Broward County adopted an Ordinance with the stated purpose of providing access to Broadband Internet Access Transport Services. Ordinance § 1.01. To that end, the Ordinance requires all county-regulated television cable franchisees to do the following:

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.

Ordinance § 1.02. The Ordinance may be enforced by a private cause of action by a qualified Internet Service Provider who has been denied access or by the County in a action for injunctive relief. Ordinance § 1.05, 1.06.

Plaintiff cable television service providers brought a pre-enforcement, facial challenge to the Ordinance on July 20, 1999, seeking declaratory and injunctive relief (DE#1). The challenge consists of seven counts: Count I -- federal preemption; Count II -- First Amendment; Count III -- Commerce Clause; Count IV -- Due Process (void for vagueness); Count V -- impairment of contract; Count VI -- Takings Clause; Count VII -- unconstitutional delegation of legislative powers.

Defendant responded with this Motion to Dismiss, contending that Plaintiffs lack Article III standing and that Counts IV, VI, and VII are not ripe for adjudication. Defendant's Motion, ¶ 8. Specifically, Defendant argues that Plaintiffs have failed to satisfy the Article III requirement of "injury in fact" for neither has alleged any of the following: 1) that it is providing "Broadband [begin page 3] Internet Access Transport Services;" 2) that it is providing Broadband access to the Internet in unincorporated Broward County; 3) that a qualified Interact Service Provider (ISP) has requested access pursuant to the Ordinance. Id. at ¶ 4. Indeed, when challenged to allege the above facts by Defendant's Motion to Dismiss, Plaintiffs alleged only that "they provide cable services to customers in unincorporated Broward County." Plaintiffs' Response, p. 11  n.8. Comcast presently does not provide Broadband access to the Internet. According to William Goetz, Jr., the Senior Vice President for Comcast, "Comcast is in the process of upgrading its cable systems in Broward County such that they will be capable of providing customers with high-speed access to the Internet and other new services." Goetz's Aff., ¶ 8. It is not clear whether the "high-speed access" which Goetz refers is Broadband access. Advanced, according to Vice President of Engineering Rick Scheller, on the other hand, is presently providing "high-speed access" Broward County and has been doing so for over a year. Scheller Aff., ¶ 9. Although Scheller refers to "high-speed access" rather than Broadband access, Scheller claims that "the Ordinance immediately subjects Advanced to litigation . . . .," implying that Advanced provides Broadband access. Id. at ¶ 17.

II.  Applicable Standards

The Supreme Court has found that the "irreducible minimum of standing contains three elements":

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

(a) concrete and particularized; and

(b) actual or imminent, not conjectural or hypothetical;

(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.

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Defendant maintains that Plaintiffs fail prong one.

In addition, Defendant asserts that Plaintiffs' claims are not ripe. The "basic rationale" of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). The question of ripeness turns on "the fitness of the issues for judicial decision" and the hardship to the parties of withholding court consideration." Id. at 149.

In cases involving pre-enforcement challenges such as this one, the Eleventh Circuit has noted that the lines among justiciability doctrines tend to blur. See Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998); American Civil Liberties Union v. The Florida Bar, 999 F.2d 1486, 1490 (11th Cir. 1993). Here, the ripeness query overlaps the "injury in fact" element of the standing analysis. See Leahy, 145 F.3d at 1245. Recognizing the similarity of the injury component of the ripeness and standing doctrines, the Eleventh Circuit has applied a single analysis, holding that justiciability concerns mandate that a plaintiff in a pre-enforcement challenge demonstrate "'a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement.' Id. (quoting The Florida Bar, 999 F.2d at 1492). A plaintiff may meet this standard in three ways: (1) it was threatened with application of the statute; (2) application is likely; or (3) there is a credible threat of application. Id. See also Babbit v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979); Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971); The Florida Bar, 999 F.2d at 1492. As the parties implicitly acknowledge in their pleadings, the justiciability [begin page 5] question hinges on the injury determination.

III.  Analysis

Where justiciability is challenged via a motion to dismiss, as here, "both the trial and reviewing courts must accept as true all material allegations of the complaint in favor of the complaining party." Region 8 Forest Serv. Timber Purchasers v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). Moroever, in ruling upon Defendant's Motion to Dismiss, we are not restricted to the face of the Complaint; we are free to rely on affidavits submitted by Plaintiffs in support of the Complaint. Warth, 422 U.S. at 501. Accordingly, we accept as true that Comcast is in the process of upgrading its cable system to provide its Broward County customers "high-speed" access to the Internet just as we accept true that Advanced presently provides its Broward County customers "high-speed" access. Goetz's Aff. ¶ 8; Scheller's Aff. ¶ 9. Nowhere, however, does either Plaintiff make any allegation concerning the provision of Broadband Internet Access Transport Services, the type of service covered by the challenged Ordinance. It is clear to this Court that were Comcast considering providing "broadband" access or were Advanced presently providing such access, they would have responded to Defendant's challenge and tailored their Response to the specific language of the Ordinance, stating plainly that they plan to provide or presently provide Broadband access, rather than hide behind the vague term "high-speed." Thus, for purposes of disposition of this Motion, the Court proceeds as if Plaintiffs neither provide nor plan to provide the type of Internet access covered by the Ordinance.

Plaintiffs are correct that courts, in the declaratory judgment context, may entertain pre-enforcement challenges to the constitutionality of an ordinance or statute. Plaintiffs' Response, [begin page 6] p. 7. Plaintiffs are also correct that standing requirements are characteristically more loosely applied when constitutional rights are at issue. However, in none of the cases cited by Plaintiffs for these propositions or in any case uncovered by this Court was standing granted a plaintiff whose present conduct or planned conduct did not arguably render plaintiff subject to the challenged ordinance or statute. This is to because only where plaintiffs face liability or prosecution can an injury be said to be actual or imminent, thereby satisfying the standing doctrine's "injury in fact" requirement.

A.  Plaintiffs" actual and imminent First Amendment injuries

Plaintiffs strongest argument for the justiciability of its challenge to the Ordinance is under the First Amendment, where Plaintiffs allege injury arising from self-censorship. See Hallandale Prof'l Fire Fighters v. City of Hallandale, 922 F.2d M. 760 (11th Cir.) ("The injury requirement is most loosely applied -- particularly in terms of how directly the injury must result from the challenged governmental action -- where first amendment rights are involved, because of the fear that free speech will be chilled even before the law, regulation, or policy is enforced."). Plaintiffs assert that their "affidavits demonstrate that they have foregone, or will forego, provision of high speed access to the Internet and other enhanced services -- which they believe to be constitutionally protected speech -- for fear that the Ordinance will penalize them by making their systems an involuntary vehicle for carriage of other ISP's messages." Plaintiffs' Response, pp. 11 - 12. For support, Plaintiffs cite Virginia v. American Booksellers Ass'n, Inc., 494 U.S. 383 (1999); Wilson v. State Bar of Georgia, 132 F.3d 1422 (11th Cir. 1998); ACLU v. The Florida Bar, 999 F.2d 1496 (11th Cir. 1993); Solomon v. City of Gainesville, 763 F.3d 1212 (11th Cir. 1995).

Each of these cases, however, can be distinguished from the case before us on the [begin page 7] grounds that Plaintiffs, unlike the Plaintiffs in the cited cases, are not presently subject to the challenged Ordinance. Plaintiffs are not presently engaged in speech -- i.e. the provision of broadband access to the Internet -- covered by the Ordinance. This distinction is significant, for even in the First Amendment context where the injury requirement is loosely applied, the injury-to-the-plaintiff requirement cannot be ignored. See, e.g., Hallandale, 992 F.2d at 760.

In American Booksellers, plaintiff booksellers challenged, under the First Amendment, a statute making it unlawful to knowingly display sexually explicit materials. The Supreme Court found that plaintiffs satisfied the "injury in fact" requirement because the law was aimed directly at Plaintiffs, who, if their interpretation of the statute was correct, would have to take significant and costly compliance measures or risk criminal prosecution. American Booksellers, 484 U.S. at 392. According to the Court, Plaintiffs alleged an actual and well-founded fear that the law would be enforced against them. Id. Indeed, the district court in American Booksellers found that the statute would cover between 5 and 25 percent of a typical bookseller's inventory. American Booksellers Ass'n v. Strobel, 617 F. Supp. 699, 702 (1993). Their injury was one of self-censorship, a harm that can be realized even without an actual prosecution. Id. at 393.

The Ordinance is aimed directly at Comcast and Advanced to the extent that they are county-regulated cable television franchisees. The pertinent provision of the Ordinance, however, is not aimed at Plaintiffs for neither presently provides broadband access in Broward County. Thus, unlike the plaintiffs in American Booksellers, neither need take any steps to avoid liability. For the same reason, 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.

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The other cases cited by Plaintiffs can be similarly distinguished: Wilson (suspended and disbarred attorneys employed by practicing lawyers, and employing lawyers, brought § 1993 action against state bar, alleging that state bar rules prohibiting suspended and disbarred attorneys from client contact violated, inter alia, their First Amendment rights); The Florida Bar (judge seeking reelection challenged a provision of the Florida Code of Judicial Conduct on First Amendment grounds that regulated the conduct of candidates for judicial office); Solomon (owner of pizza parlor whose sign was found by City officials to be in violation of city sign ordinance alleged that ordinance violated the First Amendment).

The Eleventh Circuit's decision in Hallandale lends further support to our position. In Hallandale, a union representing fire fighters made a facial challenge to a city policy establishing guidelines for criticism of supervisors and other officials by city employees, alleging, inter alia, that the policy "has a chilling effect on the freedom of speech rights." Hallandale, 922 F.2d at 761. In making its argument, plaintiff relied heavily on Solomon and International Society for Krishna Conciousness of Atlanta v. Eaves, 601 F.2d 809 (5th Cir. 1979), where religious organizations challenged on First Amendment grounds a municipal ordinance regulating distribution of literature and solicitation of funds at city-owned airports. In finding that the plaintiff failed to demonstrate concrete injury, either actual or impending, the Hallandale court distinguished Solomon and Eaves. In Solomon and Eaves, "all that remained between the plaintiff and the impending harm was the defendant's discretionary decision," for the Solomon plaintiff was already displaying his sign and the Eaves plaintiffs wanted to continue approaching passers-by. Hallandale, 922 F.2d at 762. That the Eaves plaintiffs would be harmed by the challenged ordinance was demonstrated by their desire and intent to engage in the prohibited behavior, as demonstrated by their "members' past conduct in Atlanta and their current patterns of conduct in other locations." Id. "All" that stands between Comcast and Advanced and their [begin page 9] alleged harm is their provision of broadband access, their being approached by a third-party ISP, their denying access to the ISP, and their being prosecuted under the Ordinance, triggered by a discretionary decision by Broward County or the jilted ISP. Like the plaintiff in Hallandale, neither Plaintiff here has said that it intends to violate the Ordinance or behave in a way that would arguably violate the Ordinance. Id.

For the foregoing reasons, we find that Plaintiffs have failed to demonstrate a justiciable First Amendment injury.

B.  Plaintiffs' other claims

Plaintiffs' other claims are hampered by the same shortcomings set forth above and without the forgiving First Amendment context to fall back on. Accordingly, Plaintiffs' failure to allege that they are or will be subject to the Ordinance's forced-access provision also precludes finding their other claims to be justiciable.

IV.  Conclusion

It is hereby ORDERED AND ADJUDGED as follows:

1. Pursuant Defendant's Motion to Dismiss (DE#6), Plaintiffs' case is DISMISSED WITHOUT PREJUDICE.

2. Plaintiffs shall have until December 24, 1999 to demonstrate, by affidavit or otherwise, that they do or are in the process of acquiring the capacity to provide Broadband Internet Access Transport Services, as defined by the Ordinance, in Broward County.

DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of December 1999.

Copies provided to all counsel of record