Mosher vs THE STATE OF NEW JERSEY
11/17/06 - Re: MOTION TO DISMISS


UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________

Mosher, Gary

                       Plaintiff
VS.

The State of New Jersey
&
Judge Deanne M. Wilson, Judge William Hunt Dumont, Judge Dennis Cavanaugh, Patriot Media
                       Defendants 
____________________________________

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CIVIL ACTION No. 06-2526





MOTION TO DISMISS

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
Civil Action No- 06-2526 (SRC)

BRIEF BY DEFENDANT PATRIOT MEDIA & COMMUNICATIONS CNJ, LLC
IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT
FOR FAILURE TO STATE A CLAIM

STRYKER, TAMS & DILL LLP (HF9389)
Two Penn Plaza East
Newark, New Jersey 07105
Tel. 973-491-9500
Attorneys for Defendant,
Patriot Media & Communications CNJ, LLC
On the brief: Jennifer L. Campbell

TAB'LE OF CONTENTS
INTRODUCTION............................................. 4
LEGAL ARGUMENTS ........................................ 6
CONCLUSION . . 9


TABLE OF AUTHORITIES
Alexander v. Sandoval, 532 U.S. 275 (2001).. ......7
Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).. 7
Jordan v. Solomon, 166 F.Supp.2d 134 (D.N.J. 2001)..............................6
Olmsted v. Proco Life Ins. Co. of New Jersey, 283 F.3d 429 (2d Cir.2002)..........................7
In Re Party City Securities Litigation, 147 F.Supp.2d 282 (D.N.J. 2001).............................6
STATUTES
47 U.S.C. 531................ ......................................................4
47U.S.C. 531(e)................ ..................................................4
47 U.S.C. 531(b)................ .................................................8
47 U.S.C. 531(c)................ ..................................................8
RULES
Federal Rule of Civil Procedure 12(b)(6)................ ..............4


INTRODUCTION

Defendant Patriot Media & Communications CNJ, LLC (hereafter, "Patriot Media")1 respectfully submits this brief pursuant to Fed. R. Civ. P. 12(b)(6) in support of its motion to dismiss the claims by Plaintiff Gary Mosher ("Plaintiff) as alleged in the filed Complaint.

Plaintiff alleges in vague terms that Patriot Media violated his constitutional rights and violated the provisions of 47 U.S.C. 531. That claim apparently arises out of Plaintiffs alleged inability to gain access to a local public access channel. However, Plaintiff has not set forth the factual basis of his claims with any specificity. And, in any event, as mandated by 47 U.S.C. 531(e), Patriot Media exercises no control over the public channel to which Plaintiff refers.

Plaintiff's Complaint cannot withstand scrutiny under Fed. R. Civ. P. 12(b)(6), as there are no valid legal theories of recovery to support the allegations of the Complaint. The "claims" against Patriot Media are relegated to one incoherent paragraph, and there is no language in the sparse factual allegations of the Complaint from which any legal theories could be viable under existing law. Indeed, Plaintiff recites in conclusory fashion a vague claim of suffering the denial of "American Civil Rights" and "the destruction of [his] constitutional rights" -- as if the mere invocation of the Constitution can cure the legal deficiencies underlying a factually deficient claim. Plaintiff's assertion that he is entitled to compensation for Patriot Media's alleged violation of 47 U.S.C.

Defendant Patriot Media & Communications CNJ, LLC has been improperly pled by Plaintiff as "Patriot Media." 531 is similarly untenable. To that end, there is no private cause of action pursuant to 47 U.S.C. 531.

Plaintiffs claims against Patriot Media should be dismissed.


LEGAL ARGUMENT I.
PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY UNDER FED. R. CIV. P. 12(b)(6) BASED UPON HIS FAILURE TO STATE ANY COGNIZABLE CLAIMS UPON WHICH RELIEF CAN BE GRANTED

The Complaint should be dismissed as a whole because it does not set forth any factual bases which are capable of being comprehended which support any viable claims against Patriot Media.
A Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Jordan v. Solomon, 166 F.Supp.2d 134, 135 (D.N.J. 2001) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on such a motion, "the court will accept all of the allegations of the complaint as true." Jordan, 166 F.Supp.2d at 135-36. "Legal conclusions made in the guise of factual allegations [, however,]. . . are given no presumption of truthfulness." In Re Party City Securities Litigation, 147 F.Supp.2d 282, 297 (D.N.J. 2001).

Even the most liberal reading of the Complaint fails to uncover a facially valid and supportable claim under any of the vague causes of action asserted by Plaintiff. Accordingly, Plaintiff's Complaint must be dismissed in its entirety.

A. THERE IS NO PRIVATE RIGHT OF ACTION PURSUANT TO 47 U.S.C. 531(e)_________________
47 U.S.C. 531 addresses the designation and regulation of certain cable channels for public, educational or governmental use. A review of the statute reveals that only subsection (e) regulates the conduct of cable operators. Therefore, it would appear that Plaintiff is alleging that Patriot Media has violated 47 U.S.C. 531(e), which provides, in pertinent part:

[A] cable operator shall not exercise any editorial control over any public, educational or governmental use of the channel capacity provided pursuant to this section...

If Plaintiff were in fact deprived of access, it had to be by those persons designated by the public officials of the franchising municipal entity who exercise editorial control. But in any event, the language of the statute does not expressly create a private right of action. Therefore, if such a private right exists, it must be implied.

An implied right of action exists only where Congress intended to confer rights upon a class of beneficiaries. Alexander v. Sandoval, 532 U.S. 275, 286-287 (2001).
"The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. Determining congressional intent is a matter of statutory interpretation. Id. at 286. A court, therefore, must "begin [its] search for Congress's intent with the text and structure"
of the statute. Id. at 288.

Because the statute does not expressly provide for a private right of action, the presumption is that Congress did not intend one. Olmsted v. Proco Life Ins. Co. of New Jersey, 283 F.3d 429, 432 (2d Cir.2002). That presumption is bolstered by the absence of "rights-creating" language, which "explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case." Cannon v. Univ. of Chicago, 441 U.S. 677, 690 (1979). Rather than conferring rights in any public citizen who may create a public access program, 531(e) only describes prohibited actions of cable operators. The Supreme Court has held that such statutes, which focus on the person regulated rather than the individuals protected, create "no implication of an intent to confer rights on a particular class of persons." Sandoval, 532 U.S. at 289.

Furthermore, 531 does not mandate the establishment of public access channels. Rather, 531(b) provides that a municipal franchising authority may require that a cable operator designate channel capacity for public, educational or governmental use, as part of its proposal for a franchise renewal. 47 U.S.C. 531(b). Accordingly, the right to use public access channels derives from franchise agreements between cable operators and franchising authorities, not 531. There is nothing in 531 to suggest that Congress intended to create a private right of action on behalf of third party beneficiaries to the franchise agreements. While the franchising authority may be able to compel the cable operator to make available a public access channel, a member of the public gains access to such channel from those who are entrusted with its control as designated by the franchising entity. Control by the cable operator is forbidden. Patriot Media cannot therefore deprive Plaintiff of such access.

Congress expressly provided an enforcement mechanism for violations of 531 when it specifically granted the franchising authorities the power to enforce "any requirement in any franchise regarding the providing or use of such channel capacity." 47 U.S.C. 531(c). It has long been recognized that "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Sandoval, 532 U.S. at 290. Accordingly, the fact that Congress provided an express method of enforcement in 531(c) cannot be reconciled with a finding of congressional intent to create a private right of action.

If arguendo Plaintiff did suffer a wrongful deprivation of access to such Public Access channel, his claim, if any, is against other parties, not Patriot Media. Moreover, even if such assumed deprivation could rise to an impairment of his Civil rights or loss of some constitutional protection (which it does not), his claim is not against Patriot Media who by statute has no control over the channel at issue.

Plaintiff has failed to state a valid claim for relief, and his complaint must be dismissed.

CONCLUSION


For the foregoing reasons, Patriot Media respectfully requests that this Court dismiss Plaintiffs Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

Respectfully submitted,
STRYKER, TAMS & DILL LLP (HF 9389)
Attorneys for Defendant
j
PATRIOT MEDIA & COMMUNICATIONS CNJ, LLC
By: /s/'Harold Friedman
Dated: Newark, New Jersey November 16,2006
Harold Friedman