The opinion of the court was delivered by: Alsup, District Judge.
Charter Communications, LLC ("Charter"), a wholly owned subsidiary of
Charter Communications, Inc. ("CCI"), holds the franchise for a cable
television system in Santa Cruz County ("the County"). Buyer Paul G.
Allen sought to acquire CCI as part of a nationwide acquisition of
various cable operations. Under the franchise agreement, the County's
consent was required for the transfer but, by contract, could not be
unreasonably withheld. Charter asked for consent and supplied the
information required by the FCC form used for such transfers. The County
asked for more information. The company supplied responsive information.
The County then asked for yet more information. Charter refused to comply
with the request, contending the County was demanding, unreasonably,
irrelevant information. The County then denied consent "without
prejudice." Charter closed anyway. Charter, CCI and Allen ("plaintiffs")
now assert the claims discussed.
Plaintiffs' first claim under 42 U.S.C. § 1983 asserts infringement
of the First and Fourteenth Amendment rights of free speech. The First
Amendment imposes some restrictions on a local government's power to deny
cable franchises. See City of Los Angeles v. Preferred Communications,
Inc., 476 U.S. 488, 493-5, 106 S.Ct. 2034, 90 L.Ed.2d 480(1986). A local
government, however, may permissibly ensure that a proposed owner or
operator is capable and has the legal, technical and financial
qualifications to build and to operate a system. Preferred
Communications, Inc. v. City of Los Angeles, 13 F.3d 1327, 1333 (9th
Cir. 1994). Plaintiffs' first claim adequately alleges sufficient facts
to raise the question whether the County kept on asking plaintiffs for so
much extraneous and unnecessary information as to, in effect, deny the
Plaintiffs' second claim alleges under 42 U.S.C. § 1983 an
unconstitutional taking in violation of plaintiffs' Fifth and Fourteenth
Amendment rights. The Court disagrees with plaintiffs' characterization
of their claim as a "facial" challenge to the County's action.
Accordingly, the Court dismisses the claim as unripe for federal review.
Contrary to plaintiffs' assertions, plaintiffs' takings claim is more
properly categorized as an "as-applied," rather than a "facial,"
challenge. "A facial challenge involves `a claim that the mere enactment
of a statute constitutes a taking,' while an as-applied challenge
involves `a claim that the particular impact of a government action on a
specific piece of property requires the payment of just compensation.'"
Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686 (9th Cir. 1993),
quoting Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470,
494, 107 S.Ct. 1232, 94 L.Ed.2d 472(1987). Here, plaintiffs challenge the
"particular impact" (reduction in value) of a particular "government
action" (the County's December 8, 1998, denial of Charter's request) on a
"specific piece of property" (plaintiffs' cable television franchise).
Plaintiffs' second claim thus is properly classified as an "as-applied"
challenge. Had plaintiffs wished to bring "facial" challenge, they should
have addressed such to "the mere enactment" Chapter 5.24 of the Code of
Santa Cruz County, the ordinance under color of which the County denied
Second, plaintiffs fail to demonstrate that the County "has reached a
final decision on the applicability of the regulation to the plaintiffs
property." Ibid. See also Sinclair Oil Corp. v. County of Santa Barbara,
96 F.3d 401, 409 (9th Cir. 1996) (finding unripe an as-applied takings
claim where plaintiff failed to procure a final decision from county
administrative body regarding the extent to which plaintiff would be
permitted to develop its property); Jones Intercable of San Diego v. Chula
Vista, 80 F.3d 320, 324 (9th Cir. 1996). The County's December 8
resolution denied plaintiffs' application "without prejudice," leaving
plaintiffs free to renew it. The Court therefore will not exercise
supplemental jurisdiction over this claim, and will not allow re-pleading
Plaintiffs' third claim alleges violations by the County of several
sections of the Cable Television and Consumer Protection & Competition
Act of 1992 ("Cable Act"). Section 617 of the Cable Act, codified at and
referred to herein as 47 U.S.C. § 537 ("Section 537"), provides that
a cable-franchising authority must make a final decision on an
application to transfer a cable franchise within 120 days or the request
"shall be deemed granted." Plaintiffs argue that the County failed to
comply with this schedule, thus violating plaintiffs' rights under
Section 537, as well as under 47 U.S.C. § 544(f) and § 556(c).
At the threshold, the Court questions whether plaintiffs have alleged
sufficient facts to establish the 120-day element. Although neither
plaintiffs' complaint nor any party's moving papers provide the date, it
appears from the County's Request to Take Judicial Notice, Exh. 3, p. 16,
that Charter lodged its request to transfer its system on August 18,
1998. The County rejected Charter's request on December 8, 1998, less
than 120 days later.
However that may be, the Court concludes that no private right of
action was intended by Congress to sue in federal court under any of the
Cable Act sections cited by plaintiffs. While the factors in Cort v.
Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26(1975), would seemingly
support implied rights of action under those sections,*fn1 the Supreme
Court has made clear that the ultimate test, at least where a
comprehensive enactment has created some but not other express remedies,
is whether Congress intended for a private right of action.
So too here. The Cable Act, its predecessors and its amendments are
sweeping legislation, at least eleven provisions of which grant or define
express causes of action.*fn2 None was created for Section 537. That is
the best evidence of Congress' intent. Our ...