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Last summer Terry Bienstock took several colleagues from his Miami law firm white-water rafting on the Youghiogheny River in southwestern Pennsylvania. Without warning, their raft capsized. Everyone spilled into the bitterly cold rapids, pinging off rocks like pinballs. Their inexperienced guides tossed them a line, but didn’t think to hold on to it. “Here we were,” recalls Bienstock, “the seven of us holding on to a rope and realizing no one was on the other end.” Luckily, all escaped unharmed. “I realized I wasn’t going to take the entire firm white-water rafting again,” he says with a chuckle. But Bienstock’s colleagues say they’re used to him flinging them into challenging situations without a rope. Green lawyers who go to work for the Bienstock Law Firm in downtown Miami often find themselves in a “guided sink or swim,” says the 47-year-old litigator. “You may want to go hide in the background, but you can’t,” says Jaime Bianchi, one of three partners at the eight-lawyer boutique that Bienstock founded in 1991. Says Bianchi, who joined the firm right out of law school, “He allows you to sharpen your skills early on.” During his 23-year career, Bienstock has handled precedent-setting litigation for clients in real estate, banking and telecommunications. He’s also handled his share of celebrity defense work, including defending Johnny Jones, the former Miami-Dade County schools superintendent who was charged with installing gold-plated plumbing fixtures in his home at the school system expense. But it’s been his work for the telecommunications industry that has gained Bienstock a national reputation as a go-to guy for cable TV operators. He has represented cable companies in numerous suits on issues ranging from theft of services to those in which consumers have challenged late payment fees, says John Mansell, senior analyst for Kagan World Media in Fairfax, Va. Bienstock became well-known litigating cases over the access to property — that is, disputes in which apartment complexes and housing developments attempted to oust the incumbent franchise cable operator or award a license to a competitor, says Mansell. “That expanded his base beyond Florida,” he notes. “He is able to take an esoteric concept of cable law and put it in a way that is easily understandable, so the judge understands our point,” says Thomas Nathan, general counsel for Comcast Cable Communications Inc. in Philadelphia. While many telecom lawyers work inside the Washington, D.C., Beltway, Bienstock prefers to base his national practice in Miami. “It’s the best of both worlds,” he says, pointing to the spectacular view of Biscayne Bay from his 31st story window. NOVEL ARGUMENT WORKS Bienstock has helped develop case law in a field that was loosely regulated when he started out. His telecom clients have included Comcast, AT&T, HBO, CNN and ESPN. “We are good at dealing with issues that have never been litigated before, that no one knows what to do with but are crucial to the business,” Bienstock says. “We come up with a political, legal strategy to get the results [clients] want.” Bienstock crafted a unique legal argument that resulted in a big victory last year for cable TV operators in Broward County. In 1999, the Broward County Commission passed a groundbreaking ordinance designed to force cable companies to open their high-speed Internet access lanes to competitors. At that time, all around the country, the Baby Bells, as well as content providers like America Online, were lobbying counties, cities and states to pass similar open-access ordinances. The issue has since died down on the local level, but the Federal Communications Commission is still looking at it. Cable operators argue that they have spent billions to rebuild their cable operations to accommodate new high-speed data services, and thus should have the right to choose who can use their lines, says Jim Pagano, vice president and general manager of Advanced Cable Communications of South Bend, Ind., which provides Internet and cable TV services to Coral Springs and Weston. At about the same time the issue was being debated in Broward, the Miami-Dade County Commission was considering an ordinance. The lobbying battle produced a heated confrontation at the county building between Bienstock and lobbyist Susan Fried, who was representing a company before the County Commission in connection with an open-access ordinance. According to sources, Fried, who’s physically small, shoved the stocky, 6-foot-3-inch Bienstock, who didn’t budge. Bienstock downplays the encounter. “She represented her client aggressively, as did I,” he says. But Fried was no more successful in swaying county commissioners than she was in moving Bienstock. The commission rejected the ordinance. Fried did not return phone calls for comment. In 1999, Bienstock, representing Comcast, Advanced Cable, MediaOne and AT&T, sued the Broward County Commission in U.S. District Court in Fort Lauderdale to have the ordinance overturned. In arguing the suit, Bienstock based his clients’ case on the free speech provisions of the U.S. Constitution rather than get into the unsettled area of cyberspace regulation. Bienstock argued that forcing a cable company to open its network to rival Internet service providers would be like forcing an online newspaper to carry every syndicated columnist. Mansell notes that in other cases, cable TV companies have argued that local regulation demanding open access to cable lines is pre-empted by FCC jurisdiction over telecom facilities. Two years earlier, AT&T, which held the cable TV franchise in Portland, Ore., had lost a federal case with the argument that FCC jurisdiction pre-empted local regulation. The judge ordered AT&T to open its cable lines to other Internet service providers. But federal Judge Donald M. Middlebrooks of the U.S. District Court for the Southern District of Florida bought Bienstock’s novel argument that the county’s ordinance was an unconstitutional infringement of free speech. This past May, the Broward County Commission backed off and rescinded the proposed ordinance. The cable industry saw it as a major victory. “We got a tremendous decision,” says Comcast’s Nathan. “It was a prominent decision because it basically discredited this forced access movement by saying there are real legal problems here.” But Alan Becker, a founding partner at Becker & Poliakoff in Fort Lauderdale who had helped convince the county to adopt the ordinance on behalf of GTE (now Verizon), and who defended the County Commission against Bienstock’s suit, calls Bienstock’s victory “Pyrrhic.” Matthew Leibowitz, managing partner at Leibowitz & Associates, a six-lawyer telecom firm in Miami, doesn’t buy the First Amendment argument. But he believes Bienstock was able to convince Middlebrooks, a former media lawyer, by playing to the judge’s strong interest in protecting free speech. “It was an interesting idea,” says Leibowitz, who represents cities in their negotiations with cable companies over franchises and enforcement of those franchises. “But the First Amendment analysis fails when you look at other courts’ treatment of cable and their First Amendment rights.” CABLE’S CHAMPION That wasn’t the first time Bienstock cited the First Amendment in arguing his cable clients’ case. In 1983, Bienstock convinced U.S. District Judge William Hoeveler to overturn an ordinance passed by the city of Miami to regulate the sexual content of HBO programming, which some city leaders considered indecent. Hoeveler ruled that laws against indecent speech on broadcast channels did not apply to cable TV. He also broke new ground in defending the penalty fees charged to cable TV subscribers for late payment of bills. When consumers filed class actions around the country against numerous cable operators, Bienstock’s firm represented several defendants, including Comcast. The allegation was that the late fees were higher than the actual costs to the companies. Bienstock discovered an arcane common law doctrine called the voluntary payment rule. Under this theory, consumers who voluntarily agree to pay a fee without disputing it at the time waive the right to challenge it later. Bienstock won several of the cases. It soon became the standard defense in the industry and is now being used in other industries, such as banking, storage and cellular phones. “It created a new body of law on this issue of late fees,” says Nathan. Bienstock says he wanted to be a trial lawyer from the age of 5. “That or an astronomer,” he says. When he realized lawyers make a better living, Bienstock decided to gaze at the stars in his spare time. A Long Island native, Bienstock put himself through Rutgers University law school buying and selling rare comic books and movie and science fiction memorabilia through mail order transactions and collectors’ conventions. He had started when he was just 14. By the time he was 16 or 17, Bienstock says, he was one of the largest dealers in the country. “In three days, I would make what my friends made all summer,” he says. But he gave up that business when he graduated from law school in 1978. That same year, Bienstock moved to Miami to join Mershon Sawyer Johnston Dunwoody & Cole. In 1980, he left to join William Snow Frates, a nationally known litigator, along with Buddy Jacobs, a prominent Jacksonville lobbyist and Tom Ferrer, a partner with Mershon, to form Frates Jacobs & Ferrar. TASTE OF FAME Bienstock’s first case was that of Jones, the Dade school superintendent accused of misappropriating funds for plumbing fixtures. The trial, which took place in Miami-Dade Circuit Court, was broadcast on public TV and brought him unexpected fame. “I will never forget the day after the trial. I got into the elevator and everyone said, ‘Hey, you’re the TV lawyer’,” he says. Though he lost the Jones case at trial, Bienstock won before the 3rd District Court of Appeal, which remanded the case to the trial court. But Bienstock convinced then-Dade State Attorney Janet Reno to drop the case for lack of evidence. That experience, he says, changed the way he viewed the news media and the judiciary. “I always thought of them as neutral bodies,” he says. “What Johnny Jones [the case] taught me is that everyone has their view of the world and sees it through their own slant. It taught me to relate to judges and juries in a different way. I am good at looking at what is happening through their eyes.” His success at doing this has allowed him to acquire three homes, in Montauk on Long Island, on Sunset Island in Miami Beach, and in rural West Virginia. He uses the West Virginia house as a retreat to plot strategies with colleagues and clients before a trial. But Bienstock describes himself as a 24/7 lawyer who doesn’t take vacations. “You can give condolences to my wife,” he quips. Currently, Bienstock is at work on a new collaboration. He’s helping his real estate developer clients sell the right to provide telecom services in their new developments, rather than giving them away as they traditionally have. His firm is working with Arvida in Orlando, Pensacola, Jacksonville and Tallahassee to identify telecom providers and negotiate deals for telephone, Internet and cable services. Now, when buyers in his clients’ new developments move into their homes, those telecom services already are installed and ready to use. “It started dawning on everybody that these were valuable rights, and working together builds value for cable companies and is a marketing tool for developers,” Bienstock says. John Baric, general counsel for Arvida, says this type of out-of-the-box thinking is typical of Bienstock. He thinks several steps ahead, “like a good chess player, anticipating the other side’s moves so we are in a good position on the playing board.”

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