U.S. Court of Appeals for the 2nd Circuit Case Summaries: June 24,

Daily Record (Rochester, NY), Jun 24, 2009

U.S. Court of Appeals for the 2nd Circuit

Cable Television

Must-Carry Provisions

Cablevision Systems Corp. v. FCC

07-5553-ag

Petition for review of decision of Federal Communications Commission

Background: The petition is for review of an order of the Federal Communications Commission, which directed petitioner Cablevision to carry the signal of television station WRNN. The must-carry provisions of the 1992 Cable Act require cable operators, such as Cablevision, to carry the signals of a number of local commercial television stations. The FCC's decision ordered the company to include certain Long Island communities in the market of WRNN, a station broadcasting from upstate New York; the resulting order directed Cablevision to carry WRNN on its Long Island cable systems. Cablevision argues that the commission's decision contravenes the text and purpose of the statute, and that the statute as applied violated Cablevision's First and Fifth Amendment rights.

Ruling: The petition is denied. Cablevision was required to show that the regulation had an economic impact that interfered with distinct investment-backed expectations to establish a regulatory taking. It failed to do so. As to its First Amendment claim, the court finds the order to be content neutral. It has no trouble concluding that the order "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further these interests."

Henk Brands of Paul, Weiss, Rifkind, Wharton & Garrison LLP for the petitioner, and Jacob M. Lewis of the Federal Communications Commission for the respondent

Medicaid

Wong v. Doar

08-4992-cv

Appealed from the Southern District of New York

Background: The appeal is from an award of summary judgment in favor of the defendants on the plaintiff's challenge to state Medicaid Manual section 3259.7, an informal rule issued by the U.S. Department of Health and Human Services' Centers for Medicare and Medicaid Services, which provides that income placed in a Special Needs Trust be considered in determining the extent of benefits to which a Medicaid-eligible person is entitled. The rule effectively prevents Medicaid recipients such as Wong from using trusts to shelter monthly Social Security Disability Insurance income from certain Medicaid eligibility determinations. Plaintiff Sai Kwan Wong is a permanently disabled Medicaid recipient who resides in a nursing home. Through his guardian, Wong appeals an award of summary judgment in favor of the named city, state and federal defendants -- among them, the commissioner of the New York City Human Resource Administration and the Secretary of the Department of Health and Human Services -- which was entered by the district court.

Ruling: The court rejects the plaintiff's argument that section 3259.7 conflicts with the plain language of 42 U.S.C. [section]1396p(d), and accords Skidmore deference to the enforcing agency's issuance of section 3259.7 as a reasonable exercise of discretion to fill a gap in the statute on an issue about which Congress failed to express clearly its intent.

Aytan Yehoshua Bellin for the appellant, and Janet Z. Zaleon, assistant corporation counsel, for the appellee