Senate Bill S1882

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1882

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 9, 2009
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

AN  ACT  to  amend  the  public  service law, in relation to prohibiting
  discrimination by cable television companies against video programming
  vendors

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 212 of the public service law is amended by adding
a new subdivision 15 to read as follows:
  15. "VIDEO PROGRAMMING VENDOR" SHALL MEAN  A  PERSON  ENGAGED  IN  THE
PRODUCTION, CREATION, OR WHOLESALE DISTRIBUTION OF VIDEO PROGRAMMING FOR
SALE.
  S  2. The public service law is amended by adding a new section 231 to
read as follows:
  S 231. PROHIBITION AGAINST DISCRIMINATION IN CABLE PROGRAMMING.  1. IT
SHALL BE UNLAWFUL FOR A CABLE TELEVISION COMPANY TO DISCRIMINATE IN  THE
SELECTION, TERMS, OR CONDITIONS FOR CARRIAGE OF VIDEO PROGRAMMING ON THE
BASIS OF AFFILIATION OR NON-AFFILIATION OF VIDEO PROGRAMMING VENDORS.
  2.  ANY PERSON WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF THIS
SECTION MAY BRING, IN ANY COURT OF COMPETENT  JURISDICTION  IN  ITS  OWN
NAME,  (A)  AN  ACTION  TO  ENJOIN SUCH UNLAWFUL ACT OR PRACTICE, (B) AN
ACTION TO RECOVER ITS ACTUAL DAMAGES, OR (C) BOTH SUCH ACTIONS  REFERRED
TO IN PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION.  IF IT SHALL APPEAR TO
THE SATISFACTION OF THE COURT THAT THE DEFENDANT CABLE TELEVISION COMPA-
NY HAS VIOLATED THIS SECTION, AN INJUNCTION SHALL BE ISSUED BY THE COURT
ENJOINING  AND  RESTRAINING  ANY  FURTHER VIOLATIONS, AND REQUIRING SUCH
DEFENDANT TO CARRY THE  VIDEO  PROGRAMMING  OF  THE  UNAFFILIATED  VIDEO
PROGRAMMING  VENDOR  UPON  SUCH  TERMS  AND  CONDITIONS AS THE COURT MAY
DETERMINE FOLLOWING THE PRESENTATION AND  CONSIDERATION  OF  APPROPRIATE
EVIDENCE,  INCLUDING EVIDENCE AS TO THE TERMS AND CONDITIONS OF CARRIAGE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05280-01-9
              

S. 1882                             2

FOR DEFENDANT CABLE TELEVISION COMPANY'S AFFILIATED VIDEO PROGRAMMING ON
DISTRIBUTION SYSTEMS OPERATED BY SUCH  COMPANY  AND  BY  AFFILIATED  AND
NON-AFFILIATED  CABLE  TELEVISION  COMPANIES.  THE  COURT  MAY,  IN  ITS
DISCRETION,  INCREASE  THE  AWARD  OF DAMAGES IN AN AMOUNT NOT TO EXCEED
THREE TIMES THE ACTUAL DAMAGES, IF THE COURT FINDS THAT THE DEFENDANT IN
SUCH ACTION WILLFULLY AND KNOWINGLY VIOLATED THIS SECTION. THE COURT MAY
AWARD REASONABLE ATTORNEYS' FEES TO A PREVAILING PLAINTIFF.
  3.(A) UPON REQUEST BY A VIDEO PROGRAMMING VENDOR OR A CABLE TELEVISION
COMPANY, THE ATTORNEY GENERAL SHALL REVIEW ANY CONTRACT  OF  SUCH  VIDEO
PROGRAMMING  VENDOR  OR SUCH CABLE TELEVISION COMPANY FOR THE PURPOSE OF
ADVISING  SUCH  REQUESTER  OF  SUCH  CONTRACT'S  SATISFACTION   OF   THE
PROVISIONS OF THIS SECTION, AS MAY BE POSSIBLE.
  (B)  WITHIN  THIRTY  DAYS  AFTER ANY CONTRACT IS AGREED UPON BETWEEN A
VIDEO PROGRAMMING VENDOR AND A CABLE TELEVISION COMPANY PURSUANT TO THIS
SECTION, BUT BEFORE SUCH CONTRACT TAKES  EFFECT,  THE  ATTORNEY  GENERAL
SHALL  CERTIFY  THAT SUCH CONTRACT WAS REVIEWED BY THE ATTORNEY GENERAL.
THE ATTORNEY GENERAL SHALL FURTHER CERTIFY THAT, IN THE OPINION  OF  THE
ATTORNEY  GENERAL,  SUCH  CONTRACT  CONFORMS  TO  THE PROVISIONS OF THIS
SECTION AND IS IN THE BEST INTEREST OF THE PUBLIC.
  (C) IF THE ATTORNEY GENERAL DETERMINES THAT  SUCH  CONTRACT  DOES  NOT
SATISFY THE PROVISIONS OF THIS SECTION OR IS NOT IN THE BEST INTEREST OF
THE  PUBLIC,  THE  ATTORNEY  GENERAL SHALL NOT CERTIFY SUCH CONTRACT AND
SUCH CONTRACT SHALL BE VOID AND UNENFORCEABLE.
  4. WHENEVER THERE SHALL APPEAR TO BE A VIOLATION OF THIS  SECTION,  AN
APPLICATION  MAY  BE  MADE  BY  THE  ATTORNEY GENERAL IN THE NAME OF THE
PEOPLE OF THE STATE OF NEW YORK TO A COURT OF COMPETENT JURISDICTION FOR
A SPECIAL PROCEEDING TO ISSUE AN INJUNCTION,  AND  UPON  NOTICE  TO  THE
DEFENDANT CABLE TELEVISION COMPANY OF NOT LESS THAN FIVE DAYS, TO ENJOIN
AND  RESTRAIN  THE CONTINUANCE OF SUCH VIOLATION, AND IF IT SHALL APPEAR
TO THE SATISFACTION OF THE COURT THAT THE DEFENDANT  HAS  VIOLATED  THIS
SECTION, AN INJUNCTION MAY BE ISSUED BY THE COURT:
  (A)  ENJOINING AND RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT REQUIR-
ING PROOF THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY;
AND
  (B) REQUIRING THE DEFENDANT CABLE  TELEVISION  COMPANY  TO  CARRY  THE
VIDEO  PROGRAMMING  OF  THE VIDEO PROGRAMMING VENDOR UPON SUCH TERMS AND
CONDITIONS AS THE COURT MAY  DETERMINE  FOLLOWING  THE  PRESENTATION  OF
APPROPRIATE  EVIDENCE, INCLUDING EVIDENCE AS TO THE TERMS AND CONDITIONS
OF CARRIAGE FOR DEFENDANT'S CABLE TELEVISION COMPANY'S AFFILIATED  VIDEO
PROGRAMMING  ON  DISTRIBUTION  SYSTEMS  OPERATED  BY SUCH COMPANY AND BY
AFFILIATED AND NON-AFFILIATED CABLE TELEVISION COMPANIES.
  S 3. Severability. If any provision of this act or the application  of
such  provision  in  certain  circumstances  shall  be held invalid, the
validity of the remainder of this act and  its  applicability  to  other
circumstances shall not be affected.
  S  4.  This  act shall take effect on the thirtieth day after it shall
have become a law and shall apply to contracts issued, renewed,  altered
or modified on or after such effective date.