EAST ST. LOUIS – East St. Louis can’t pursue a claim that video streamers must pay city fees, U.S. Magistrate Judge Mark Beatty ruled on Sept. 23.
He dismissed the city’s suit against Netflix, Disney, Apple, Hulu, Warner Media, Amazon, CBS, You Tube, Curiosity Stream, Peacock, DirecTV, and Dish Network.
East St. Louis alleged violation of Illinois cable and video competition law but Beatty found the suit inconsistent with the law’s purpose.
“The statute sought to implement a state authorization process and uniform standards and procedures for cable franchising,” he wrote.
“It does not make sense that the legislature would leave enforcement decisions to the whims of any and all of the more than a thousand municipalities in the state of Illinois as plaintiff contends.”
He found the law provided a right of action to no one but the attorney general.
John Driscoll, former St. Louis lawyer now in Puerto Rico, represents East St. Louis along with Grey Chatham Jr. and C.J. Baricevic of Belleville.
They sued last year claiming streamers used public right of way without authority from the state commerce commission and without paying city fees.
They also alleged violation of a city ordinance on unlawful resale of cable service and alleged trespass resulting in unjust enrichment.
In the absence of explicit language granting cities a right of action, they claimed the law implied the right.
They claimed statutory remedies were inadequate because the attorney general hadn’t pursued remedies.
Beatty found the argument misguided in two ways.
“First it relies on an assumption that defendants are in fact subject to the cable and video competition law and have violated it,” he wrote. “But defendants vigorously contest that they are subject to the cable and video competition law and the issue is by no means resolved in this order.
“Second, the simple fact that the attorney general has not pursued a lawsuit does not somehow mean the statutory enforcement framework is an inadequate remedy.”
Beatty found local disagreement with an attorney general as to when it is appropriate to bring suit wasn’t sufficient to show the remedy was inadequate.
He disposed of the ordinance violation by finding the allegations insufficient to plausibly suggest the defendants violated the ordinance.
He found the city enacted it in 1983 to address the theft of cable service, “which was a widely recognized problem.”
He declared himself in the dark as to why the city thought defendants resold video content or how the resale scheme actually worked.
He also disposed of trespass and unjust enrichment claims relating to delivery of content on wire lines in public right of way.
He found Internet providers installed, operated, and maintained any physical infrastructure on public right of way.
He found content traveling through wire lines has no physical presence.
He found the city’s position would mean that every website, online service, and user was liable for trespass unless they obtained explicit permission, a result he called "absurd," and underscored why the theory couldn’t stand.
Zachary Howerton of Maryland and Melissa Sims of Tennessee represented East St. Louis along with Driscoll, Chatham and Baricevic.
Streamers retained 37 lawyers.