Id. Viewing the PPTNC's actions with regard to plaintiff's request for interconnection in light of these factors demonstrates that these actions are far from final.
As stipulated, the PPTNC has certainly not expressed its definitive position on WYBE interconnection; plaintiff has only recently submitted its application in the form required by the PPTNC. Nor is the so-called 75 percent non-duplication standard definitive of the PPTNC's position, because, as plaintiff itself admits, "no-one at PPTN has ever defined what constitutes program duplication." See WYBE's Free Speech Brief at 5. Accordingly, there can be no argument that anything the PPTNC has done with respect to interconnection has the status of law with an immediate expectation of compliance. As there has been no decision on interconnection, and the non-duplication standard appears ambiguous, WYBE's day-to-day operations go untouched, and there is no argument from plaintiff to the contrary. Further, because I must wait to see how the non-duplication standard will be applied and whether WYBE will be interconnected before I can determine whether federal rights were infringed, the issue to be decided will require a great deal of additional factual development.
A final consideration is whether immediate judicial review would speed enforcement of Act 329. Plaintiff's position that Act 329 requires interconnection arguably could merit immediate review to ensure that the Act's purpose is not frustrated. However, judicial interference in the PPTNC's process at this time would be disruptive, postpone a final determination that could obviate the need for judicial review, and be inimical to the legislative scheme.
The second factor to be addressed in assessing the ripeness of a claim for judicial review is the hardship to the parties of withholding judicial consideration. I conclude that by withholding judicial consideration of plaintiff's federal constitutional claims regarding interconnection, plaintiff will suffer no hardship that would necessitate review at this time. The hardship sustained by withholding judicial review may be assessed by determining whether plaintiff has "demonstrated concrete injury, either actual or impending." Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale, R.J., 922 F.2d 756, 760-61 (11th Cir. 1991). See also Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972)(requiring that plaintiffs demonstrate actual or impending injury in first amendment context). As the PPTNC has made no decision on interconnection adverse to plaintiff, no actual injury has been incurred. Nor has plaintiff demonstrated the presence of impending injury: Plaintiff itself admits that under all but the most restrictive and questionable definitions of the PPTNC's non-duplication standard (none of which, plaintiff also admits, have been formally adopted by the PPTNC), WYBE would likely qualify as non-duplicative. See WYBE's Free Speech Brief at 6, 7 n.2. Hence any threatened injury is speculative at best. Without actual or impending injury, plaintiff will suffer no hardship whatsoever by withholding judicial consideration of its claims. Defendants, of course, in raising the issue of ripeness, do not see themselves as suffering any hardship either.
Having concluded that plaintiff's federal constitutional claims regarding interconnection are not fit for judicial decision and that the parties will suffer no hardship by delaying judicial consideration, I find that these claims do not present a justiciable case or controversy. Accordingly, these claims will be dismissed without prejudice for lack of jurisdiction.
C. Network Funding
Plaintiff's final claims under the U.S. Constitution are that defendants have denied it PPTN funding in violation of its rights of free speech, due process and equal protection. Plaintiff's free speech claim in the funding context is based upon the same allegations that color its free speech claim regarding interconnection -- that defendants have denied plaintiff PPTN funding based, in part, upon the 75 percent non-duplication standard. Similarly, plaintiff's due process and equal protection claims rest upon the same allegations supporting these claims in the interconnection context -- the decision to reject plaintiff's request for funding was made by a biased governmental decision maker, and plaintiff has been arbitrarily treated differently than its eight sister stations.
The parties having stipulated that the PPTNC rejected plaintiff's request for funding, defendants do not contest the justiciability of these claims. Instead, as in the case of plaintiff's "delegation" and bias claims above, defendants contend that this Court should abstain under Pullman from exercising its jurisdiction. Although I did not agree with defendants' suggestion of abstention earlier, I agree with it here.
As a general rule, federal courts are bound to adjudicate cases within their jurisdiction. See Hughes v. Lipscher, 906 F.2d 961, 964 (3d Cir. 1990). But in cases "where questions under both state law and the federal constitution are present, the policies of promoting comity with the state courts and ensuring the smooth functioning of the federal judiciary counsel the federal courts to stay their hands, at least initially." Hughes, 906 F.2d at 964. The Court of Appeals for the Third Circuit requires the presence of the following three "special circumstances" before courts of this Circuit may abstain under Pullman:
First, there must be uncertain issues of state law underlying the federal constitutional claims brought in the federal court. Second, these state law issues must be amenable to an interpretation by the state courts that would obviate the need for or substantially narrow the scope of the adjudication of the constitutional claims. And third, it must appear that an erroneous decision of state law by the federal court would by disruptive of important state policies.