government from taking private property; they merely require that the
government justly compensate the party from whom such property is taken.
Here, plaintiffs have failed to pursue in California state court a claim
for inverse condemnation. Nor have plaintiffs argued that no suitable
forum exists in which they could seek such relief. Thus, it is impossible
to say that the County has violated the Constitution by taking
plaintiffs' property and refusing to pay for it. Ibid.
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.
The present case bears an analogy to Middlesex County Sewerage
Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69
There, the Supreme Court leapt over the Cort v. Ash factors and held that
there is no implied right of action under the Federal Water Pollution
Control Act or the Marine Protection, Research and Sanctuary Act. "The
key to the inquiry is the intent of the Legislature," the Court held.
Noting the elaborate enforcement provisions of the acts, the Court felt
"compelled to conclude that Congress provided precisely the remedies it
considered appropriate." Id. at 13-15, 101 S.Ct. 2615.
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 review of the legislative
history finds nothing to the contrary.
Because the Court finds no implied rights of action under Sections
537, 544(f) and 556(c), it concludes that plaintiffs' only recourse in
this regard is a state-law contract action of the type outlined in
plaintiffs' fourth claim. The Court further finds that such an action,
based as it is in state law, fails to present a federal question
sufficient to confer federal subject-matter jurisdiction. Janakes v.
United States Postal Service, 768 F.2d 1091, 1093 (9th Cir. 1985)
(holding that "[a] declaratory judgment plaintiff may not assert a
federal question in his complaint if, but for the declaratory judgment
procedure, that question would arise only as a federal defense to a state
law claim brought by the declaratory judgment defendant in state
court"). See also Nashoba Communications v. Town of Danvers, 893 F.2d 435,
437-9 (1st Cir. 1990) (failing to find federal question jurisdiction in
declaratory judgment proceeding by cable system operator where federal
cable statute relied upon by operator would not have appeared in
franchising authority's anticipated "well-pleaded" state court
complaint). But see Village of Alden v. Cablevision Indus., Inc., No.
98-CV-3255(H), 1998 WL 911997, at *3-4 (W.D.N.Y. Oct. 26, 1998).
Given, however, that the Court will separately have subject-matter
jurisdiction by virtue of the First Amendment claim, this Court may (or
may not), depending on how the record develops, exercise supplemental
jurisdiction over plaintiffs' contract claim, including the alleged Cable
Act violations. 28 U.S.C. § 1367.
In summary, the motion to dismiss is DENIED as to plaintiffs' first and
fourth claims, GRANTED as to plaintiffs' third claim and GRANTED without
leave to amend as to plaintiffs' second claim. The parties are free to
take discovery and to prepare their case for trial or summary judgment.
IT IS SO ORDERED.